WNET, Thirteen v. Aereo, Inc.

Transmission of a recorded program to an individual user, from a single copy of that program, using a dedicated antenna does not constitute a public performance and is therefore not an infringement on the broadcaster’s copyright.

Opinion (Droney): Aereo, Inc. ("Aereo") enables its subscribers, limited to New York City, to watch broadcast television programs over the internet for a monthly fee. Aereo assigns an individual antenna to each user, which transmits an individual copy of the program, both for nearly live or previously recorded programs. A group of broadcasters (“WNET”) sought a preliminary injuction against Aereo alleging copyright infringement for transmitting performances nearly simultaneously with the airing of the WNET’s shows, alleging that Aereo was publicly performing WNET’s copyrighted works without a license. The district court denied the injunction because WNET was not likely to prevail on the merits based on Cablevision v. CSC Holdings and that Aereo was likely to suffer more hardship than WNET from an adverse ruling. The Court then reviewed for abuse of discretion. Whether Aereo is likely to suffer more hardship depends on whether Aereo’s service infringes the WNET's public performance right under the Copyright Act. Typically, the copyright owner has an exclusive right to perform the copyrighted work publicly. However, transmission of a recorded program to an individual subscriber is not a public performance because each transmission that Aereo makes is only sent to one user. Each user-associated copy of a program created by Aereo's system is generated from a unique antenna assigned to one user. The Court held that WNET did not provide them with adequate basis to distinguish Cablevision from the Aereo system. The Court found no error in the district court's conclusion that WNET is unlikely to prevail on the merits. Accordingly, the district court's order denying WNET's motion for a preliminary injunction is AFFIRMED.