The district court noted that the Second Circuit’s focus on which copy of the work the
transmission is made from put it in tension with the 1991 decision in the On Command Video
Corp. case,^492 in which a court in the Northern District of California held that a hotel system that
transmitted to individual hotel rooms movies being played from individual videotapes by remote
control from a central bank in a hotel equipment room violated the copyright holder’s public
performance right. The district court believed that the On Command Video Corp. case properly
focused on the public performance of the copyrighted work. Accordingly, the court concluded
that the defendants’ unique-copy transmission argument based on Cablevision and Aereo was not
binding in the Ninth Circuit.^493
Having found that the plaintiffs had established a likelihood of success on the merits, and
finding the other three factors for a preliminary injunction weighed in the plaintiffs’ favor, the
court issued a preliminary injunction against the operation of the Aereokiller service. However,
given the court’s finding that the application of Ninth Circuit law differed from Second Circuit
law, the court believed that principles of comity prevented the entry of an injunction that would
apply to the Second Circuit, and that it should not assume that the other Circuits would agree
with its decision rather than Cablevision. Accordingly, the court issued an injunction prohibiting
the defendants from offering their service only within the states covered by the Ninth Circuit.^494
After the district court’s decision, the Supreme Court issued its decision in the case of
American Broadcasting v. Aereo, discussed in Section II.B.10 above, ruling that Aereo violated
the public performance right by transmitting the plaintiffs’ works through its system collectively
to public subscribers. Given the close factual similarity between the “Aereokiller” service and
the Aereo service, the Supreme Court’s holding in the Aereo decision would seem to confirm the
district court’s outcome in this case.
- Fox v. FilmOn
This was the third case to adjudicate claims of infringement of the public performance
right based on a streaming and recording system that operated in a very similar way to those at
issue in the Aereo and BarryDriller cases by allowing users to use an individual mini digital
antenna and DVR to watch or record a free television broadcast.^495 Indeed, FilmOn, the operator
of the system, readily admitted that its technology was “similar ... in every relevant way” to the
technology at issue in Aereo and BarryDriller.^496 The court issued a preliminary injunction
enjoining FilmOn from offering its service through the U.S. except within the Second Circuit
(where Aereo was the binding precedent), and required the plaintiffs to post a bond of
$250,000.^497
(^492) 777 F. Supp. 787 (N.D. Cal. 1991).
(^493) BarryDriller, 2012 U.S. Dist. LEXIS at *17-18, 20.
(^494) Id. at 23-29.
(^495) Fox Television Stations, Inc. v. FilmOn X LLC, 966 F. Supp. 2d 30 (D.D.C. 2013).
(^496) Id. at 34.
(^497) Id. at 51-52.