Cablevision, for one, doesn't think its
court victory over programmers in the remote DVR case should extend to
The Barry Diller-backed subscription service provides mobile
users access to time-shiftable Web versions of broadcast signals in New York
City for a monthly subscription. In response, broadcasters sued Aereo citing
copyright violations because the company did not get their permission to
retransmit the signals or pay them for their content.
A judge in the Second District of New York denied a request
to shut down the service while it hears the case, a decision broadcasters are
challenging in the Second Circuit Federal Appeals Court.
In a brief to the Second Circuit supporting broadcasters'
effort to get that lower court decision reversed, the cable operator says Aereo
"seeks an expansion of Cablevision's public-performance holding that would
extend it far beyond the case's facts, beyond its rationale, and in
contravention of settled industry expectations."
The applicability of the Cablevision Case appears central to
the current case. In denying the injunction, the district court found no
appreciable difference between Aereo and Cablevision's remote DVR, which the
Second Circuit court of appeals concluded did not violate copyright
protections. In fact, the
court relied heavily on that precedent, with the judge saying that without
that decision, plaintiffs -- broadcasters -- would likely have prevailed in
their request for a preliminary injunction.
"Contrary to the district court's holding, Aereo's
system is nothing like -- much less 'materially identical' to -- the
[Cablevision remote DVR system] for copyright purposes. Unlike Aereo,
Cablevision operates a licensed cable system that retransmits content to
subscribers pursuant to agreements with content providers. In addition to and
separate from providing that licensed cable system, Cablevision also offers
technologies that enable its subscribers to record television programs for
later viewing." By contrast, it says, "Aereo's hard-drive copies
perform a role that is neither operationally meaningful nor independent from
Aereo's real-time transmission service."
also filed a brief in support of programmers last July in their legal fight
with online movie service, Zediva.