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Tuesday, June 18, 2024 | Back issues
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Six-State Ban Against Aereo Upheld on Appeal

(CN) - A federal judge's six-state injunction against Aereo will stand, the 10th Circuit ruled, finding that the television-streaming service is unlikely to succeed on appeal.

U.S. District Judge Dale Kimball had imposed the injunction last month in Salt Lake City, finding that the streaming service is "indistinguishable from a cable company," and needs a license to stream the broadcast network's copyrighted programming.

The injunction covers Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma, and the Denver-based federal appeals court affirmed, 2-1, on Friday.

"Aereo has not made a strong showing that it is likely to succeed on the merits of its appeal," the two-page order states. "Nor has Aereo demonstrated that the other factors weigh in its favor. We therefore deny Aereo's emergency motion to stay the preliminary injunction pending appeal."

Major broadcast networks, including ABC, CBS, NBC and Fox, have been locked in ongoing litigation with Aereo, which is backed by Barry Diller's IAC, ever since the subscription service debuted in major cities in 2012.

Aereo maintains that copyright law protects its service, allowing customers to watch network content on their computers, mobile devices and televisions with a small delay after live broadcast.

Last year, a divided three-judge panel of the 2nd Circuit in New York rejected the networks' copyright claims against Aereo.

A key part of Aereo argument is the 2008 decision from the 2nd Circuit, Cartoon Network LP v. CSC Holdings Inc., abbreviated in the court record as Cablevision.

The court in that case found that a system that allowed viewers to watch content through remotely located DVRs was not a "public performance" under the transmit clause of the Copyright Act, and therefore did not require an additional license.

Aereo argues that its customers access only a unique signal from one of thousands of dime-sized antennas. In that sense, Aereo contends, it is offering customers something like traditional rabbit ears where customers view the networks' content "privately."

A federal judge in Washington, D.C., issued a nationwide injunction last year against Aereo's competitor Film On X's paid subscription service, barring it from streaming live TV shows over the Internet through a similar mini-antenna technology.

Around that time, a New York federal judge found that Film On X violated a settlement and court injunction by streaming the networks' programs.

Last week, the Supreme Court refused to let Film On X intervene in the final leg of Aereo's New York battle.

Aereo has largely fared better in the courts. It won a favorable ruling from U.S. District Judge Nathaniel Gordon in Boston last year when the judge refused to enjoin Aereo from streaming the original programming of ABC affiliate, WCVB-TV.

Judges Mary Briscoe and Judge Robert Bacharach signed the 10th Circuit's majority order. Judge Harris Hartz said he would have stayed the injunction.

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