link for the video feed, was hardly akin to an individual user stringing up a television antenna on
the roof. The court also expressed the belief that every broadcast of a television program
(whether cable, satellite, over-the-air, over the Internet, or otherwise) could be described as
generated from the same copy – the original source. The court therefore found FilmOn, a
commercial service retransmitting the plaintiffs’ television performances, to be in no meaningful
way different from cable television companies, whose relationship with broadcasters was the
primary motivation for the 1976 Act’s enactment of the transmit clause.^501
Accordingly, the court concluded that the plaintiffs had established a likelihood of
success on the merits of their copyright infringement claim. Finding that the plaintiffs would
suffer irreparable harm if FilmOn were allowed to continue operation of its system, that the
balance of harm tipped in the plaintiffs’ favor, and that the public interest would be served by
upholding copyright protection, the court issued a preliminary injunction against FilmOn.^502
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 FilmOn system and the
Aereo system, the Supreme Court’s holding in the Aereo decision would seem to confirm the
district court’s outcome in this case.
- Hearst Stations v. Aereo
The case of Hearst Stations Inc. v. Aereo, Inc.^503 was the fourth case (and the second
against Aereo) to adjudicate claims of infringement of the public performance right based on a
streaming and recording system utilizing individual mini digital antennas and DVRs to enable
users to watch or record a free television broadcast. The plaintiff Hearst sought a preliminary
injunction, arguing that Aereo’s services fell within the definition of transmitting to the public –
and therefore infringed its public performance rights – because Aereo was transmitting a
performance of the original program to members of the public, and contended that the fact that
each user viewed a unique copy of the program was irrelevant to the analysis. Aereo argued that
it was transmitting private rather public performances per Cablevision. It also argued that
Hearst’s suggestion that the relevant performance was the copyrighted work read the terms “a
performance or display” out of the statutory phrase “a performance or display of the work” in the
transmit clause.^504
The court ruled the following:Aereo’s interpretation is a better reading of the statute because the “canon against
surplusage” requires this Court to give meaning to every statutory term if(^501) Id. at 47-48.
(^502) Id. at 48-52.
(^503) 977 F. Supp. 2e 32 (D. Mass. 2013).
(^504) Id. at 38.