Federal Judge Nixes Aereo's Latest Strategy

Updated: Ruling blocks company from operating as a cable system
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A federal judge in New York Thursday barred Aereo from providing users “access to ‘live’ copyrighted content over the internet,” halting the beleaguered video streaming company’s attempt to operate like a traditional cable system.

The judge, with the U.S. District Court for the Southern District of New York, Thursday (Oct. 23) granted Fox and other broadcasters a preliminary injunction against Aereo given that the Supreme Court has ruled it was in violation of Copyright Law.

In doing so, the judge rejected new arguments from Aereo based on some comments from Supreme Court Justices in the opinion that Aereo was like cable.

The judge said that "like" a cable system did not mean Aereo "was" a cable system entitled to a compulsory license.  

“The Supreme Court concluded that Aereo performs in ways similar to CATV systems when it retransmits broadcasts while those broadcasts are still being broadcast, and therefore its services are similarly covered by the transmit clause,” wrote U.S. District Judge Alison Nathan. “Doing its best to turn lemons into lemonade, Aereo now seeks to capitalize on the Supreme Court's comparison of it to a CA TV system to argue that it is in fact a cable system that should be entitled to a compulsory license under § 111. This argument is unavailing for a number of reasons.”

This is the latest in a series of rulings against Aereo, beginning with the U.S. Supreme Court’s June ruling that Aereo infringed copyright.

“Yet again the courts vindicate Fox's position that you can’t get away with stealing our content,” said Fox spokesman Scott Grogin.   

Aereo is down, but may still not be out.

The New York judge based the decision to grant the preliminary injunction in part on the decision — actually decisions — of the U.S. Copyright Office that Internet transmissions are not entitled to a compulsory license. But the Copyright Office has not weighed in definitively on Aereo's request for such a license, saying the courts or the FCC may have something different to say this time around.

The FCC might. As Multichannel News/B&C first reported, the Media Bureau is working on a notice of proposed rulemaking that would make linear Internet content distributors MVPDS, which means the regulatory equivalent, at least at baseline, of cable operators.

If that were approved, Aereo might have yet another leg to stand on in arguing it should get a compulsory license, though it would have to negotiate retrains payments with broadcasters, just as cable operators do given that the Supreme Court says it retransmits programming, just as cable operators do.

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