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Judge Allows Aereo to Keep Streaming Network TV — for Now

11 Jul, 2012 By: Erik Gruenwedel


A federal judge in New York has refused to grant a temporary restraining order against Aereo Inc., the streaming service that allows users to stream live TV network programming on portable media devices.

U.S. District Judge Alison Nathan in Manhattan refused a motion proffered by TV networks that would have effectively shuttered New York-based Aereo while the media companies carried out a copyright infringement lawsuit against the service.

Nathan, in her ruling, said a restraining order would have put Aereo out of business prior to a court decision in the litigation. She compared the case with Cablevision’s rollout of a proprietary DVR service that allowed subscribers to store movies on its servers. It prevailed in court over the studios.

“Faithful application of Cablevision requires the conclusion that plaintiffs are unlikely to succeed on the merits of their public performance claim,” Nathan wrote. In addition to finding that plaintiffs were not likely to succeed on the merits of their claim, Nathan noted that the balance of harm “certainly does not tip 'decidedly' in favor of plaintiffs.”

Aereo CEO Chet Kanojia heralded the ruling.

“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,” Kanojia said in a statement.

Aereo subscribers pay $12 monthly for access to live TV broadcasts transmitted via dime-sized antennae to portable devices and related media players. Aereo currently operates only in New York, which is considered the largest media market in the country.

The networks contend Aereo isn’t paying them requisite retransmission fees to broadcast their programming to subscribers over the Internet.

“This service is based on the illegal use of our content,” ABC, CBS and NBC officials said in a statement when filing the suit.

At launch, BTIG Research analyst Richard Greenfield wondered whether the service would invite immediate litigation blowback from content owners similar to what transpired when New York-based Cablevision attempted to launch a remote digital recorder, dubbed RS-DVR.

In 2006, several Hollywood studios sued Cablevision over the RS-DVR alleging content copyright infringement — a case that ultimately was decided in favor of the cable operator.

“If Aereo is in fact legal, we find it hard to fathom that the traditional [multivideo program distributors] bundle will survive and that retrans payments will continue to scale as broadcasters are expecting them to over the next several years,” Greenfield wrote in a Feb. 14 post.

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