As Supreme Court decision approaches, a U.S. District Judge in Utah has enjoined Aereo from rolling out its service in the Tenth Circuit.
Ten days ago we suggested that Aereo aficionados who can’t wait for the Big Show in the Supreme Court (oral argument April 22, decision likely before the end of June) might want to take a look at the U.S. District Court in Utah. That’s where the latest of the broadcasters’ copyright infringement suits brought against Aereo has been poking along.
And looky here. U.S. District Judge Dale Kimball has granted the broadcasters’ motion for a preliminary injunction! This marks the first time that Aereo has been on the wrong end of an injunction ruling; it should send a clear signal to one and all that Aereo may be in for some rough sledding ahead.
Judge Kimball’s decision reads like it was written by the broadcasters. Some sample bits and pieces:
“The plain language of the 1976 Copyright Act support[s] Plaintiffs’ position.”
“Aereo’s retransmission of Plaintiffs’ copyrighted programs is indistinguishable from a cable company and falls squarely within the language of the Transmit Clause.”
There is “no basis in the language of the Transmit Clause or the relevant legislative history suggesting that technical details take precedence over functionality. In fact, such a focus runs contrary to the clear legislative history.”
And the bottom line?
“Based on the plain language of the 1976 Copyright Act and the clear intent of Congress, this court concludes that Aereo is engaging in copyright infringement of Plaintiffs’ programs.”
To reach his decision, Kimball reviewed not only the Copyright Act itself, but also the legislative history underlying that Act and the decisions of the other Aereo, and FilmOn X, courts. He didn’t think much of the Second Circuit’s Aereo decision or the Cablevision decision on which it was based.
In his view, the Second Circuit “proceeded to spin the language of [the Copyright Act], the legislative history, and prior case law into a complicated web”. Ouch. The Second Circuit “changed the wording” of the Act in a crucial respect. Double ouch. And contrary to the Second Circuit, Kimball found “no basis in the language of the Transmit Clause or the relevant legislative history suggesting that technical details take precedence over functionality. In fact, such a focus runs contrary to the clear legislative history.”
Further demonstrating how unimpressed he was with the Second Circuit, Kimball quoted extensively from Judge Denny Chin’s dissents in the Second Circuit and, presumably so we all couldn’t miss the point, expressly observed that “Judge Chin’s dissenting opinion [is] more persuasive than the majority opinion.”
And so Judge Kimball enjoined Aereo, but only in the Tenth Circuit. Of course, the Tenth sprawls across Utah, Colorado, Kansas, New Mexico, Oklahoma and Wyoming, so the injunction isn’t small potatoes by any means.
But the real impact of this turn of events is primarily psychological: Aereo’s strategy appeared to be working like a charm, what with resounding victories in the Second Circuit and a follow-on decision in the District Court in Boston. Sure, a couple of district courts went the other way, but those cases involved FilmOn X, not Aereo. Now, however, Aereo itself has ended up on the short end of a judicial decision.
This is likely to be the last court decision in the Aereo saga until the Supreme Court weighs in in a couple of months. The Aereo litigation in the First Circuit and the FilmOn X cases in the Ninth and D.C. Circuits have been stayed pending the Supremes’ decision. And even Judge Kimball, having enjoined Aereo, went ahead and stayed further proceedings in that case, too, also pending the Supreme Court’s decision.
Check back here for updates.