It's not looking good for broadcasters locked in a lawsuit with Aereo, a pay TV service that "rents" tiny TV antennas to customers in order to stream local TV signals to them over the Internet.
Handing a big victory to Aereo, the Second Circuit Court of Appeals ruled Monday that the lower court made the right decision last July when it refused to grant broadcasters an injunction that would have shut down the Barry Diller-backed service.
"We conclude that Aereo's transmission of unique copies of broadcast television programs created at its users' requests and transmitted while the programs are still airing on broadcast television are not 'public performances' of the plaintiff's copyrighted works under [the] Cablevision [case]. As such, plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favor," wrote Judge Christopher Droney.
New York broadcasters, including Fox, Tribune, PBS, Univision and WNET filed against the upstart service last year just weeks before it was set to launch, claiming that the service infringed on their broadcast public performance copyright. When U.S. District Judge Alison Nathan rules against them, they quickly filed for appeal.
Broadcasters are stunned with this latest development. But remain committed to the fight.
"Today's decision is a loss for the entire creative community," the broadcasters said in a statement. "The court has ruled that it is ok to steal copyrighted material and retransmit it without compensation. While we are disappointed with this decision, we have and are considering our options to protect our programming. In the meantime, we plan to move forward towards a trial on the merits of the case, and on claims that were not impacted by this appeal. We remain confident that we will ultimately prevail."