Second Circuit Won't Hear En Banc Aereo Appeal

NEW YORK — A federal appeals court denied a request by broadcasters for all 13 judges to consider their request for an injunction against Aereo. The ruling was issued by the U.S. Court of Appeals for the Second Circuit on Tuesday. Broadcast plaintiffs are suing Aereo for copyright violation over redistributing TV signals without legal consent.

“Though this has been characterized as a ‘victory’ for Aereo, we believe it is important to remind investors that a network victory here was considered to be very unlikely,” Wells Fargo analysts said in a note on the decision. “Today’s ruling applies only to the request for an injunction, not the actual copyright infringement case.”

The plaintiffs have twice lost legal bids to stop Aereo’s service in New York while the court decides the copyright issue. The service, which pools local broadcast TV signals on the cloud and redistributes them via an antenna array for mobile devices. Aereo’s principals claim the service is not subject to copyright law a la retransmission consent because it delivers the programming package through individualized, and not mass-distributive means.

Aereo launched in New York earlier this year, and more recently, in Boston, where WCVB-TV has filed suit. The service also went commercial in Atlanta just a few days ago.

“Today’s ruling only means that Aereo may continue operating its business in the Second Circuit—New York, Connecticut and Vermont—while the ‘actual’ case is heard in the U.S. District Courts. As such, it only means that Aereo may continue operating its business while the ‘real’ case is heard in the U.S. District Courts,” the Wells Fargo team said.

An Aereo-like service launched on the West Coast was enjoined by the U.S. District Court for Central California, covering Washington, California, Oregon, Nevada, Arizona, Idaho, Montana, Alaska, Hawaii and Guam. That injunction is on appeal in the Ninth Circuit Court of Appeals in Los Angeles. Should the Ninth Circuit Appeals court uphold the injunction, it will create a “circuit split” with the New York court, making a hearing by the U.S. Supreme Court more likely.

“We believe Aereo’s legality will eventually be determined by the U.S. Supreme Court,” the analysts said. “The case is likely to drag out over some time, possibly until 2015.”

A spokesman for Fox, one of the plaintiffs, told the Los Angeles Times that the broadcasters would consider taking their case to the U.S. Supreme Court.

July 10, 2013,
Boston ABC Affiliate Sues Aereo
WCVB-TV, the Hearst-owned ABC affiliate in Boston, has filed suit against Aereo for copyright infringement.

July 9, 2013:Aereo Launches on PlayOn Software
MediaMall Technologies said Tuesday that its PlayOn software will now make Aereo local TV channels accessible to Aereo TV users on select gaming consoles, set-top boxes and Android devices. ~ from TWICE

June 28, 2013:
Aereo’s Unlikely Proposition
“Anyone who has taken antennae 101 knows that tiny pieces of metal separated by tiny distances act as one piece of metal.”