Utah Judge to Aereo: Not in this Circuit! [telecom]

By Harry Cole, CommLawBlog, February 19, 2014

| 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.

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