Aereo heading to the US Supreme Court?

Aereo’s business model of re-transmitting TV broadcasts without a license infringes copyright and should be shut down. Its business model is a “sham” designed to capitalize on perceived loopholes in the US Copyright Act. This was the opinion of Circuit Judge Chin in his dissent in WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2^nd.Cir.Apr, 1, 2013). He re-iterated these same views in a scathing dissenting opinion disagreeing with his brethren in the Second Circuit who denied a motion to re-hear the case en banc.

It is rare for a Judge to issue reasons, especially long reasons in dissent, explaining why a case should be reheard en banc. However, Judge Chin, with whom Circuit Judge Richard Wesley agreed, did so in this case. They would have reheard the case for four reasons:

• First, because the case raises “a question of exceptional importance” and because “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions”
• Second, the text of the Copyright Act and its legislative history make clear that Aereo’s retransmissions are public performances.
• Third, Aereo’s reliance on Cablevision is misplaced because Cablevision was wrongly decided.
• Fourth even assuming Cablevision was correctly decided, Cablevision was misapplied and should not be extended to the circumstances Aereo’s business model.

Judge Chin then comprehensively elaborated on each of the above grounds before concluding with the following summary of why the case ought to have been reheard by the Court:

As I wrote in my panel dissent, the majority’s decision elevates form over substance. It holds that a commercial enterprise that sells subscriptions to paying strangers for a broadcast television retransmission service is not performing those works publicly. It reaches that conclusion by accepting Aereo’s argument that its system of thousands of tiny antennas and unique copies somehow renders these transmissions “private.” In my view, however, the system is a sham, as it was designed solely to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law purportedly created by Cablevision. Both the majority’s decision and Cablevision’s interpretation of the transmit clause are inconsistent with the language of the statute and congressional intent. This decision upends settled industry expectations and established law. It should not be permitted to stand, and the Court should have taken this opportunity to clarify that Cablevision does not provide “guideposts” on how to avoid compliance with our copyright laws. Because it declines to do so, I respectfully dissent.

The copyright battle over Aereo and its application of the Cablevision doctrines is far from over. Litigation over the service is taking place in California where a District Court refused to follow the decision of the Second Circuit and in Boston. The battle may also prompt an appeal to the US Supreme Court. Judge Chin may well have concluded that the best way to overturn the decisions in Cablevision and Aereo, decisions he clearly disagrees with, was to write a powerful enough dissent to get the Supreme Court to take the case, or to influence the Ninth or First Circuit Court of Appeals (the circuits in which the other two cases are being heard) to create a circuit split that ultimately would be resolved by the US Supreme Court.