Aereo avoids a preliminary injunction, keeps its antenna to internet TV service on the air for now

While the battle between Aereo, a service that brings OTA TV broadcasts to the internet, and the broadcasters that began suing it before it even launched continues, a judge ruled today against a request for a preliminary injunction to shut it down. Reuters reports that the basis for the decision is that while the broadcasters demonstrated they faced "irreparable harm", Aereo too faced harm from a potential shutdown, and the balance did not tip heavily enough in the broadcasters favor. So, for now the subscription feeds from those microantennas to NYC residents shelling out $12 a month will continue -- we'll wait see if the upstart streamer's streak continues.

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Ruling from Federal Judge Alison Nathan finds in favor of Aereo, stating that "faithful application of Cablevision requires the conclusion that Plaintiffs are unlikely to succeed on the merits of their public performance claim."

Decision allows Aereo to continue operations and serves as important milestone in the quest to increase television choice and program access for consumers

New York, NY (July 11, 2012) – Federal Judge Alison J. Nathan today issued a ruling in the combined cases pending in the United States District Court for the Southern District of New York, American Broadcasting Companies et al. v. Aereo, Inc. Civil Action No. 12-CV-1540 (AJN) and WNET et al. v. Aereo, Inc. Civil Action No. 12-CV-1543 (AJN) in favor of Aereo, denying the plaintiffs, a group of 17 network broadcasters, its motion for a preliminary injunction against Aereo.

"Today's decision shows that when you are on the right side of the law, you can stand up, fight the Goliath and win," said Aereo CEO and Founder Chet Kanojia. "This isn't just a win for Aereo, it's also a significant win for consumers who are demanding more choice and flexibility in the way they watch television. We said from the start that we believed that a full and fair airing of the issues would reveal that Aereo's groundbreaking technology falls squarely within the law. We are grateful to the court for its thoughtful and measured approach to this matter. Today's decision should serve as a signal to the public that control and choice are moving back into the hands of the consumer – that's a powerful statement."

After a careful review and analysis of the detailed factual and legal record, the Court stated that "faithful application of Cablevision requires the conclusion that Plaintiffs are unlikely to succeed on the merits of their public performance claim." In addition to finding that plaintiffs were not likely to succeed on the merits of their claim, the Court also noted that the balance of harm "certainly does not tip 'decidedly' in favor of plaintiffs."

The Court based its decision primarily on the Cablevision case noting the importance of preserving "the expectations of parties, like Aereo, who rely on binding precedent."

The Court stated that "[t]he overall factual similarity of Aereo's service to Cablevision...suggests that Aereo's service falls within the core of what Cablevision held lawful." In the decision, Judge Nathan went on to say that "[i]ndeed, in light of this Court's factual determination that each antenna functions independently, in at least one respect, the Aereo system is a stronger case than Cablevision."

Plaintiffs had argued for an injunction that would have required consumers not to be able to watch their recorded programming until the underlying broadcast had completed airing. The Court rejected that argument finding no support for it whatsoever in either Cablevision or the Sony Betamax case.

Aereo offers New York consumers innovative and easy to use technology, consisting of a remote antenna and remote DVR, that consumers can use to watch over the air broadcast television on an Internet connected device. Instead of being tethered only to a television set, consumers can use Aereo to watch television, either live or pre-recorded, with their DVR, on the go, on their portable devices. The broadcasters' public license to broadcast over-the-air is contingent upon their obligation to provide free over the air broadcasts to consumers. Nonetheless, broadcasters tried to stop Aereo, asserting that it threatened their business model, just as broadcasters tried in the past to stop the VCR and other innovative television technology.

After a two day hearing held in May in federal court in New York, Judge Nathan found that consumers' use of Aereo to access, copy and view television programming did not violate the copyright claims advanced by plaintiffs.

With this decision, it is clear that there is no reason that consumers should be limited to 1950s technology to access their right to broadcast television. Since the Supreme Court of the United States heard the Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) (often referred to as the Sony Betamax case), consumers have had the right to record over the air broadcast television for personal viewing. Additionally, the remote DVR concept was expressly validated by the federal Court of Appeals in this circuit in Cartoon Network LP v. CSC Holdings, 563 F.3d 121 (2d Cir. 2008) (often referred to as "Cablevision"). While a consumer has previously been able to access television remotely on the Internet by cobbling together a variety of devices, Aereo's technology was the first to make it simple and intuitive for the consumer to control their remote television antenna and DVR through a portable device such as a tablet, smart phone, computer of Internet connected television.

The cases remain technically pending, however, Judge Nathan's opinion has spoken eloquently, clearly and comprehensively about the issues in the case. It is Aereo's hope that in light of the Judge's opinion, the plaintiff broadcasters will reconsider their resistance to new technology and embrace consumer access and innovation.