Utah Court Grants Fox's Aereo Injunction
Says Programmer Would Be Irreparably Harmed Otherwise
By: John Eggerton
Multichannel News
Feb 19 2014 - 05:37pm
http://www.multichannel.com/distribution/utah-court-grants-foxs-aereo-injunction/148396
A Utah district court has granted Fox's motion for a preliminary
injunction against Aereo, saying it was likely to prevail on its
copyright claim.
At the request of Fox and Aereo, the Supreme Court is currently
considering whether to uphold a Second Circuit Court of Appeals decision
declining to enjoin Aereo. Multiple district courts have weighed in on
injunctions, both for and against, but the underlying case has yet to be
decided. That being whether Aereo is impermissibly transmitting a
copyrighted performance without compensation or is providing subs with
remote access to antennas and recording functionality.
The court concluded that Fox and the other complainants are "likely to
succeed on the merits of their copyright infringement claims and that
they will be irreparably harmed if a preliminary injunction does not issue."
"Therefore, the court finds that the requested stay pending the Supreme
Court’s decision in ABC v. Aereo should and will be entered with a
preliminary injunction in place to protect Plaintiffs’ copyrighted
works," wrote District Court Judge Dale Kimball.
"This is a significant win for both broadcasters and content owners. We
are very pleased that the U.S. District Court in Utah has granted our
request for a preliminary injunction," Fox said. "This injunction will
prohibit Aereo from stealing our broadcast signal in Utah, New Mexico,
Colorado, Oklahoma, Wyoming and Montana."
The Utah court said it was more persuaded by the dissenting arguments of
Second Circuit Judge Denny Chin about the differences between the Aereo
case and the Second Circuits decision that Cablevision was not violating
copyrignt by allowing for remote recording of cable channels.
Judge Chin said, and Judge Kimball cited in his opinion, that:
“Cablevision involved a cable company that paid statutory licensing and
retransmission consent fees for the content it retransmitted, while
Aereo pays no such fees.
Moreover, the subscribers in Cablevision already had the ability to view
television programs in real-time through their authorized cable
subscriptions, and the remote digital video recording service at issue
there was a supplemental service that allowed subscribers to store that
authorized content for later viewing. In contrast, no part of Aereo’s
system is authorized. Instead, its storage and time-shifting functions
are an integral part of an unlicensed retransmission service that
captures broadcast television programs and streams them over the Internet.”
As to arguments that Fox and others would not suffer irreparable harm --
Aereo pointed to broadcasters own statements that Areo's infringement
was a drop in the bucket -- Kimball said the amount was essentially
beside the point, then listed a litany of harms.
"If Aereo were permitted to continue to infringe plaintiffs’ copyrights
during the pendency of this litigation," Kimball wrote, "Aereo’s
infringement will interfere with plaintiffs’ relationships and
negotiations with legitimate licensees, impede and effect plaintiff’s
negotiations with advertisers, unfairly siphon viewers from plaintiffs’
own websites, threaten plaintiffs’ goodwill and contractual
relationships with plaintiffs’ licensed internet distributors, lose
their position in the competitive marketplace for Internet content, and
cause plaintiffs to lose control of quality and potential piracy of its
programming. All of these potential harms are intangible factors that
support a finding of irreparable harm."
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