Last week, a federal district court declined to enjoin Aereo’s “Watch Now” streaming service pending the outcome of a full trial in the copyright infringement law suit filed by the major networks and broadcast stations serving the New York DMA against Aereo. The parties sought to enjoin Aereo from streaming their programming for the duration of the trial because, they argued, they were likely to succeed on the merits. The court’s denial of their request for a preliminary injunction means that Aereo is free to continue with it service for the duration of the trial. The decision adds to the confusion around the degree to which broadcast signals may be streamed online and to mobile devices.
In last week’s decision, the court agreed with Aereo that its “Watch Now” streaming service works much like the remote storage DVR (“RS-DVR”) service offered by Cablevision and which the Second Circuit upheld against claims of copyright infringement in a separate decision last year. The RS-DVR service at issue in that case stored programming designated by consumers for recording on servers maintained remotely by Cablevision. Consumers could playback those programs through their home television sets using a remote control and a standard cable box equipped with the RS-DVR software. Key to the finding that the RS-DVR did not infringe upon copyright was the fact that when a consumer selected a program to be recorded to the RS-DVR, a “unique copy” of the program was saved for the consumer on the RS-DVR server. It was that “unique copy” which in turn was played back to the consumer when he or she requested it ― meaning there was no infringing “public performance.” The Second Circuit’s decision is legally binding in New York, Vermont, and Connecticut.