issues of the scope of the public performance right. The plaintiffs sought a preliminary
injunction to stop Aereo from offering a private streaming service that allowed its users to access
live copyrighted content over the Internet through various mobile devices such as PCs, laptops,
smartphones, and tablet computers. The plaintiffs’ motion for a preliminary injunction was
limited in scope, challenging only the aspects of Aereo’s service that allowed subscribers to view
the plaintiffs’ copyrighted television programs contemporaneously with the over-the-air
broadcast of those programs.^422
Aereo’s service worked as follows. A user of Aereo’s system, after logging into his
account on Aereo’s web site, could navigate through a programming guide to select television
programs currently being aired or that would be aired at a later time. If the user selected a
program that was currently being aired, the user was given two options, “Watch” and “Record.”
Selecting “Watch” caused Aereo’s system to transmit a web page to the user in which the
program started after a short delay, allowing the user to view the program “live,” i.e., roughly
contemporaneous with its over-the-air broadcast. If the user pressed the “Record” button after
having begun watching a program using the “Watch” feature, the Aereo system retained the copy
that the user had been watching. If “Record” was not selected, the copy was not retained and
could not be viewed again later.^423
Instead of selecting the “Watch” function at the outset, the user could press the “Record”
button to schedule a recording of a program that would be broadcast at a later time or that was
currently being aired. However, the “Record” feature could also be used, like the “Watch”
feature, to view programs live – users could direct Aereo’s system to begin a recording and then
immediately begin playback of the recording as it was being made.^424
The technology that implemented the service, which was designed specifically to take
advantage of the reasoning of the Cablevision case, consisted of a large bank of individual
antennas that could be “assigned” individually to specific users who wanted to watch or record a
program. Specifically, when a user clicked on the “Watch” button, the user’s web browser sent a
request to Aereo’s Application Server, which in turn sent a request and certain information about
the user and the requested television program to Aereo’s Antenna Server. The Antenna Server
allocated resources to the user, including an antenna and transcoder, depending on whether the
user was a “static” or “dynamic” user, a distinction based on the user’s subscription plan with
Aereo. Static users had a set of previously selected antennas that had been assigned to them,
whereas dynamic users, who were the vast majority of Aereo’s subscribers, were randomly
assigned an antenna each time they used Aereo’s system. No two users were assigned a single
(^421) 874 F. Supp. 2d 373 (S.D.N.Y. 2012), aff’d sub nom. WNET v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), rev’d
sub nom. American Broadcasting Co. v. Aereo, Inc., 134 S. Ct. 2498, 2504 (2014).
(^422) Id. at 375.
(^423) Id. at 377.
(^424) Id.