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Major New York broadcasters eager to shut down streaming television service Aereo have petitioned [PDF] the Second Circuit Court of Appeals for an en banc review of a ruling that upheld a lower court decision denying an injunction against the broadcasting startup.
The broadcasters, which include WNET, Fox Television Stations, Univision, and the Public Broadcasting Service, were disappointed in the Second Circuit’s 2-1 decision two weeks ago in which they agreed with Aereo’s argument that its service does not offer a public performance and is therefore not infringing copyrights. They relied on a 2008 Second Circuit decision that backed Cablevision’s offering of a remote DVR and noted that Aereo made a separate copy of the requested programming for each subscriber.
“That erroneous analysis has now spawned an obviously incorrect decision that threatens to cause massive disruption to the television industry, and will adversely impact the public’s access to the quality and diversity of programming available through broadcast television,” the broadcasters said in their petition, written by a team of attorneys from Jenner & Block.
The appellate court decision included a strong dissent by Judge Denny Chin, who called Aereo’s system a “Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” This has given the broadcasters hope that a rehearing before the full body of judges might result in a reversal of the lower court’s decision.
The courts are split on the issue, as a federal court in California earlier this year shut down a streaming system that resembles Aereo’s because of copyright issues. The case could therefore find its way to the U.S. Supreme Court.
In a statement, the broadcasters said the petition for an en banc hearing, “is an important next step in ensuring the protection of our copyrighted material.”
Since the appellate court ruling, several broadcasting companies, including News Corp. (owner of Fox), CBS, and Univision have threatened to turn their over-the-air networks into cable-only channels. Aereo currently only broadcasts networks that transmit their programming via airwaves.