AEREO says this model fits like a glove the language of Cablevision, where the circuit said "Because each RS-DVR playback transmission is made to a single subscriber" the transmissions are not performances "'to the public' and therefore do not infringe any exclusive right of public performance" (NYLJ, Aug. 5, 2008).
With AEREO, Hosp argued, consumers are doing the downloading because they are accessing unique antennas and making copies they can control, pause and play back, just like a Cablevision customer uses the RS-DVR system.
ABC, CBS and other broadcasters respond that the so-called "antennas" are really one big antenna and they want the Second Circuit to reverse Southern District Judge Alison Nathan, who in July denied broadcasters the injunction they sought against AEREO (NYLJ, July 12).
Nathan held that she was constrained by Cablevision because the facts in AEREO could not be distinguished from those in Cablevision.
But on Nov. 30, the circuit judges at least gave the impression they thought there were significant differences between the two cases.
Chin said, "in Cablevision, there was an ongoing relationship with the consumer" in that the "consumer was receiving broadcasts from Cablevision and their consumer is making a copy. Here, there is no ongoing relationship with AEREO. Why doesn't that make this case different from Cablevision?"
"It seems like you're exalting form over substance," Chin said later. "Is there any legitimate business reason for having all these little itty bitty antennas?"
Hosp said the reason was to comply with the Copyright Act, as interpreted by Cablevision, and he stuck to his guns that the making of a "copy" by the consumer who downloads from one of the antennas, makes it a private performance.
Chin, who is presiding over negotiations involving Google's attempt to build a huge library of electronic books, asked whether, by analogy, putting the purchaser's name on the book would "change the logic of the case."
Hosp responded, "Where you make a copy, it's not a public performance anymore."