Circuit Split Likely in Broadcast Online Streaming Cases

By Elizabeth Cuttner

Advances in technology can often throw a wrench in the legal system. Even carefully and broadly written laws cannot always evolve to keep up with technological development. Furthermore, as courts struggle to interpret these outdated laws, the result is often disparate rulings in different jurisdictions and ultimately a lack of adequate guidance as to how the law will be applied in the future.

Currently, these interpretation problems have arisen in the area of copyright law, and the troubling technology is Aereo—a service that allows subscribers to live stream and record broadcast channels online.1 Last year, several media corporations with copyright interests in those broadcast channels filed to enjoin the online service from operating in the Second Circuit and Ninth Circuit Courts of Appeals.2 As Aereo rolled out its service in major cities across the United States—seven cities to date3—broadcasters moved fast and filed for a preliminary injunction against the online service in U.S. District Court for the Southern District of New York.4 The petitioner-broadcasters—ABC, CBS, and NBC, just to name a few—and other interested media parties assert that Aereo’s technology illegally distributes their copyright-protected signal over the Internet.5 Aereo claims that their service constitutes a private performance and is therefore not a violation of the broadcasters’ copyright in their over-the-air signal.6 The New York court sided with Aereo and denied the injunction.7 But on the West Coast, broadcasters and other media groups were granted a preliminary injunction in the Ninth Circuit against Aereo’s competitor, Aereokiller, now known as FilmOn X, who utilizes almost identical technology in providing its online service.8 While the Ninth Circuit decision is far from dispositive, the rationale behind the district court’s preliminary injunction suggests that the Ninth Circuit has adopted a different solution to the copyright infringement question regarding online services such as Aereo and Aereokiller. The divergent applications of existing copyright law and differing conclusions as to the potential for technological infringement through the online distribution systems between the two circuit courts of appeal set the stage for what could lead to a Supreme Court resolution of the circuit split in 2015, if certiorari is granted.

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