Just over two months to the day that Hearst-owned WCVB-TV was denied its preliminary injunction motion against the Barry Diller-backed streaming service, the Boston ABC affiliate has began its predictable appeal. “Simply put, this case affects the very future of over-the-air broadcasting as we know it,” says the distinctly not understated 160-page appeal made Monday to the First Circuit (read it here). As others have argued about Aereo in other cases, part of their latest copyright argument against the service is that Massachusetts-based federal District Judge Nathaniel Gorton didn’t know what he was talking about in his October 8 order. “In denying WCVB’s public performance argument, the district court failed to engage in any independent analysis and appears to have relied exclusively on the reasoning of a Second Circuit case, which has been harshly criticized by copyright scholars and had not been followed by any other court outside that circuit,” asserts the filing. This week’s latest Aereo legal action comes as Disney, CBS, NBCUniversal, WNET, Fox, and Univision await to learn if the Supreme Court will hear their potentially game changing October 11 submitted petition to review a 2012 ruling not to shut Aereo down pending a trial. It also comes as Aereo announced plans to expand to new markets the likes of Detroit and Denver and has been slapped with a second injunction motion in Utah.
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Part of Judge Gordon’s October ruling that the ABC affiliate objects to was based on the often bandied about 2008 Cablevision decision that use of a remote DVR that cable subscribers themselves choose to use protects the cable company itself from being labeled a copyright infringer. Lawyers for the Hearst’s WCVB-TV claim this reflects a fundamental misunderstanding of the Copyright Act of 1976 and is just Aereo trying to slip through artificial loopholes. “Commentators and courts alike repeatedly have recognized that the Second Circuit’s interpretation just does not work because a performance can be public even if it is communicated to the public through multiple transmissions,” says the December 9 appeal. “In fact, except for the court below, every other court outside the Second Circuit to have considered the issue rejected the Second Circuit’s reading of the Transmit Clause,” the filing adds. If precedent is any indication, expect Aereo’s reply to this appeal to be determined and dismissive – when it finally comes.