Broadcasters Take Fight Against Aereo to Supreme Court

The nation’s broadcasters took their dispute with Aereo to the Supreme Court. At issue is whether retransmission through banks of tiny antennae constitutes a public performance of copyrighted content under the Copyright Act's transmit clause. Counsel John Hane commented, “I think the debate at the Supreme Court will not be whether to take this at all, but instead whether to take it now.”

Separately, a Massachusetts court found that a preliminary injunction sought by a Hearst station against Aereo is unwarranted. Judge Nathaniel Gorton wrote that Hearst has not demonstrated a “sufficient likelihood of success on the merits nor the requisite irreparable harm.”

Courts appear to have conflicting views on transmission and what constitutes a public performance. Partner Scott Flick noted that while conflicts between the courts aren’t unusual, it’s odd to see such a degree of separation in decisions. “It seems very obvious to one set of courts that this is an absolute violation of copyright law and seems much fuzzier for other courts.”

Flick commented that this is an issue that may not ultimately be resolved until the Supreme Court weighs in. Referring to other pending litigation regarding Aereo, he added that the conflict would also be eliminated if the New York and Boston courts end up ruling in the broadcasters’ favor.