substantial number of persons outside of a normal circle of a family and its social acquaintances”
and within a general understanding of the term “public.”^513 The court further criticized the
reasoning of Cablevision as follows:
[T]he Cablevision court appears to discount the simple use of the phrase “to the
public” because it concludes that the final clause within the Transmit Clause –
“whether the members of the public capable of receiving the performance or
display receive it in the same place or in separate places and at the same time or at
different times” – was intended by Congress to distinguish between public and
private transmissions. This court disagrees. The entire clause “whether the
members of the public capable of receiving the performance or display receive it
in the same place or in separate places and at the same time or at different times”
appears to actually be Congress’ attempt to broaden [the] scope of the clause, not
an effort to distinguish public and private transmissions or otherwise limit the
clause’s reach. The term “whether” does not imply that the ensuing clause
encompasses a limitation. Rather, the introduction of the clause with the word
“whether” implies an intent to explain the broad sweep of the clause and the many
different ways it could apply to members of the public. Reading this final clause
expansively is consistent with Congress’ intent to have the entire Transmit Clause
apply to all technologies developed in the future.^514Finally, the district court noted that the Second Circuit’s analysis in Cablevision appeared
to have erroneously changed the wording of the transmit clause from reading “member of the
public capable of receiving the performance” to “members of the public capable of receiving the
transmission.” The court found that the language of the clause did not support a focus on who is
capable of receiving a particular transmission. The court therefore found itself persuaded by
Judge Chin’s dissent in the Second Circuit’s application of Cablevision to Aereo’s system in
WNET v. Aereo, discussed in Section II.B.10 above, when he concluded that, by any reasonable
construction of the transmit clause, nothing Aereo was doing was in any sense “private” and
Aereo was engaging in public performances when it intercepted and retransmitted copyrighted
programs to paying strangers.^515
The district court found the plaintiffs would suffer irreparable harm from Aereo’s
infringement by interfering with the plaintiffs’ relationships and negotiations with legitimate
licensees, impeding and affecting negotiations with advertisers, unfairly siphoning viewers from
the plaintiffs’ own web sites, threatening the plaintiffs’ goodwill and contractual relationships
with their licensed distributors, losing their position in the competitive marketplace for Internet
content, and causing them to lose control of quality and potential piracy of their programming.
The court also found the balance of harms to favor the plaintiffs and that a preliminary injunction
would be in the public interest. Accordingly, the court granted the plaintiffs’ motion for a
preliminary injunction, but limited its scope to the region of the Tenth Circuit. The court ordered
(^513) Id. at 1200.
(^514) Id..
(^515) Id. at 1200-01.