signal the public. Stated differently, the plaintiffs argued that the stored copies of the signals
made by Aereo should be viewed as merely facilitating the transmission of a single master copy
- in this case, the broadcast signal – rather than as copies from which a distinct transmission was
made.^428
The court agreed with Aereo’s characterization of its system and rejected the plaintiffs’
attempts to distinguish Cablevision. With respect to the copies created by Aereo’s system, the
court found that they were not mere facilitating copies, but rather were no less materially
significant to how the system functioned than the copies created in Cablevision’s system. First,
Aereo’s system created a unique copy of each television program for each subscriber who
requested to watch that program, saved to a unique directory on Aereo’s hard disks assigned to
that user. Second, each transmission that Aereo’s system ultimately made to a subscriber was
from that unique copy. Third, the transmission of the unique copy was made solely to the
subscriber who requested it and no other subscriber was capable of accessing that copy. The
court held that these factual similarities of Aereo’s service to the Cablevision system suggested
that Aereo’s service fell within the core of what Cablevision held lawful. The court also ruled
the fact that Aereo’s users could “share” resource like antennas by using them at different times
did not affect the analysis, as it remained clear that the copies Aereo’s system made were unique
for each user and not shared.^429
The court found other similarities to Cablevision as well. An undercurrent in the Second
Circuit’s reasoning in Cablevision was that the Cablevision system merely allowed subscribers to
enjoy a service that could also be accomplished using any standard DVR or VCR. Similarly,
Aereo’s functionality substantially mirrored that available using devices such as a DVR or a
Slingbox,^430 which allow users to access free, over-the-air broadcast television on mobile
Internet devices of their choosing.^431 Moreover, the court found that the analysis the Second
Circuit undertook in finding that the performance to the user was made from the copies stored in
the Cablevision system rather than from, for example, the incoming stream of data, was equally
applicable here. Specifically, Cablevision held that a public performance does not occur merely
because a number of people are transmitted the same television program. Nor was the Second
Circuit willing to accept the argument that, notwithstanding its creation of unique copies,
Cablevision was actually transmitting to its users the performance of that work that occurred
when the programming service supplying Cablevision’s content transmitted that content to
Cablevision. In fact, the Second Circuit expressly refused to look back to the received signal to
judge whether Cablevision was engaged in a public performance. The district court therefore
observed that, given that each antenna in Aereo’s system functioned independently, in at least
(^428) Id. at 385.
(^429) Id. at 385-86 & n.7.
(^430) A Slingbox, when connected to a user’s television in the home, digitized the received signals, including live
broadcast television, and allowed them to be streamed over the Internet to the user’s personal mobile devices.
Id. at 377. The district court noted, “Plaintiffs do not appear to contend in this litigation that services such as
Slingbox are unlawful, instead claiming that they are ‘irrelevant’ and that Aereo’s service is distinguishable
because Slingbox consumers themselves set up the Slingbox in their homes.” Id.
(^431) Id. at 386.