systems, but it was not the determinative fact for the Second Circuit. Accordingly, the district
court ruled that Aereo was not entitled to the Section 111 compulsory license.^484
The Section 512(a) Safe Harbor. Aereo further argued that its “Watch Now” feature fell
within the Section 512(a) safe harbor because Aereo was a service provider offering the
transmission, routing, or providing of connections for digital online communications. However,
Aereo’s brief declared only that it qualified as a service provider, but did not explain how it
satisfied the statutory definition of that term.^485 The district court noted that the Second Circuit
had ruled that to qualify as a service provider for purposes of Section 512(a), an entity must be a
mere “conduit.”^486 Aereo was acting as more than a mere conduit by storing and providing links
to copyrighted material. Moreover, Aereo had failed to satisfy the provision of Section 512(a)(1)
stating that the safe harbor is available only if the transmission of the material was initiated by or
at the direction of a person other than the service provider. Here, the Supreme Court had held
that Aereo was itself performing the plaintiffs’ works, so the transmission of those works was not
being initiated solely at the direction of its users. Finally, Aereo had not even alleged that it
satisfied the predicate condition of Section 512(i) that it have in place a policy for terminating
repeat infringers, and such failure constituted an absolute bar to Aereo being able to assert any
defense under Section 512.^487
- The BarryDriller Case
The district court in this case reached the opposite result from the district court in the
Aereo case on very similar facts involving the defendants’ “Aereokiller” streaming service that
allowed users to use an individual mini digital antenna and DVR to watch or record a free
television broadcast. Indeed, the defendants opposed the plaintiff’s motion for a preliminary
injunction in this case largely on the argument that their streaming service was legal because it
was “technologically analogous” to the service found legal in the Aereo case.^488 The
BarryDriller court, however, rejected the reasoning of the Second Circuit’s decision in
Cablevision, upon which the Aereo court had relied in reaching its decision. In particular, the
court disagreed with the Second Circuit’s analysis in Cablevision that the statutory definition of
“public performance” requires that a transmission of a performance itself be public in order for
the transmitter to infringe the public performance right:
(^484) Id. at 21-27.
(^485) Id. at 27.
(^486) Id. at 28 (citing Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 39 (2d Cir. 2012)).
(^487) Aereo, 2014 U.S. Dist. LEXIS 150555 at 28-29.
(^488) Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC, 2012 U.S. Dist. LEXIS 184209 at 3- 4
(C.D. Cal. Dec. 27, 2012). Before turning to its main analysis, the court rejected in a footnote the plaintiffs’
apparent argument that creation of a buffer copy in the course of streaming is itself a public performance:
“Plaintiffs seems to be relying on the fact that courts have found ‘streaming’ to be infringement of the
transmission right, and are arguing that streaming’s use of buffer copies means that the buffer copy is itself a
public performance. But Plaintiffs have cited to no authority that holds that the act of creating the transient
buffer copy – expressly considered in Cablevision and held not to be an act of infringement – is an infringement
of the public performance right. Cablevision, 536 F.3d at 127.” Id. at 12 n.9.