In June 2014, the U.S. Supreme Court dealt a devastating blow to Aereo, Inc., which pioneered a novel technology for streaming live broadcast television. Reversing the U.S. Court of Appeals for the Second Circuit, the court held 6-3 that the Aereo service made infringing “public performances” of the programs it allowed its users to access.1 On remand to the Southern District of New York, Aereo made a number of arguments to stave off the entry of a preliminary injunction, one of which was that the streaming service should qualify as a “cable system” for purposes of the compulsory license under §111 of the Copyright Act of 1976. The argument was unsuccessful. On Oct. 23, 2014 the court issued a preliminary injunction.2 In November, Aereo filed for Chapter 11, and the bankruptcy plan was approved in June. That, it seemed, was the end of the story.

Last month, however, a competing copycat technology in California, developed by FilmOn X, LLC, succeeded with the very same “cable system” argument that the Southern District had soundly and somewhat sarcastically rejected in the Aereo remand. This column will address the newly complicated landscape for the streaming of broadcast television, an activity whose legality many would have considered resolved by the Supreme Court over a year ago.

Aereo Background

The basic design of the Aereo service is very simple: Using an Internet connection, an Aereo subscriber could access a very small TV antenna, roughly the size of a dime, located on Aereo's premises. This antenna picked up local broadcast television signals in real time, just like a traditional home antenna or “rabbit ears,” and streamed the signal to the subscriber, allowing the user to watch the program on a laptop, smartphone or other device. Because each small antenna was only streaming its signal to one viewer, Aereo argued that any performance of the broadcast content was not “to the public” but merely to a single viewer. Accordingly, with respect to real-time television signals the service argued that it was essentially an antenna-rental service, and did not violate the exclusive public performance right of the content owner under the Copyright Act.

This position was arguably consistent with the Second Circuit's 2008 decision in Cartoon Network v. CSC Holdings,3 (generally known as the “Cablevision” case), which held that a somewhat different “single-viewer” streaming technology did not violate the public performance right. Indeed the Aereo technology appears to have been engineered specifically to take advantage of the Cablevision ruling. In addition to Aereo, which began in New York City, other services, notably including FilmOn X, soon rolled out their own single-user-antenna-based streaming services in other TV markets. Litigation proliferated, as the content owners sued, or the services brought declaratory actions, in California, Chicago, Washington D.C., Boston and other forums. The Central District of California, disregarding “Cablevision,” preliminarily enjoined FilmOn X.