after the original transmission, i.e. the live broadcast of the program, had finished. The court
rejected this argument for two reasons. First, Aereo’s copies did have the legal significance
ascribed to the RS-DVR copies in Cablevision because the user exercised the same control over
their playback. Such volitional control over how the copy was played made Aereo’s hard disk
copies unlike the temporary buffer copies generated incident to Internet streaming only after the
user had selected the program to watch. Second, the plaintiffs’ argument failed to account for
Aereo’s user-specific antennas. Each user-associated copy of a program created by Aereo’s
system was generated from a unique antenna assigned only to the user who requested that the
copy be made. The feed from that antenna was not used to generate multiple copies of each
program for different Aereo users but rather only one copy – the copy that could be watched by
the user to whom that antenna was assigned, and only that user.^448
Finally, the plaintiffs argued that holding that Aereo’s transmissions are not public
performances would exalt form over substance, because the Aereo system was functionally
equivalent to a cable television provider. The court noted that the same was likely true of
Cablevision, which created separate user-associated copies of each recorded program for its RS-
DVR system instead of using more efficient shared copies because transmissions generated from
the latter would likely be found to infringe copyright holders’ public performance right. The
court acknowledged that perhaps the application of the transmit clause should focus less on the
technical details of a particular system and more on its functionality, but the Second Circuit’s
decision in Cablevision held that technical architecture matters.^449
The majority opinion made one final point with respect to stare decisis, observing that,
though presented as efforts to distinguish Cablevision, the plaintiffs’ arguments were really ones
to overrule Cablevision. After noting that one panel could not overrule a prior decision of
another panel, the court went on to observe that stare decisis was particularly warranted here in
view of the substantial reliance on Cablevision, pointing to many media and technology
companies that had relied on Cablevision as an authoritative interpretation of the transmit clause.
One interesting example the court pointed to was cloud media services that allow their users to
store music on remote hard drives and stream it to Internet-connected devices, which apparently
had been designed to comply with Cablevision.^450
Accordingly, the court ruled that Aereo’s transmission of unique copies of broadcast
television programs created at its users’ requests and transmitted while the programs were still
airing on broadcast television were not public performances under Cablevision, and affirmed the
district court’s denial of a preliminary injunction.^451
The Supreme Court Decision
(^448) Id. at 692-93.
(^449) Id. at 693-94.
(^450) Id. at 695 & n.19.
(^451) Id. at 696.