antenna at the same time. The data obtained by a particular antenna while allocated to a
particular user was not shared with or accessible by any other Aereo use.^425
Once these resources were allocated, the Antenna Server sent a “tune” request that
directed the user’s antenna to tune into a particular broadcast frequency band to obtain the
desired program. The Antenna Server also sent a request to the Streaming Server that created a
unique directory, assigned to the user, for storing the output data received by the antennas and
processed by the transcoder. Once that directory was created, an electrical signal was sent from
the antenna, processed and converted into data packets, and then sent to the transcoder, which
encoded it in a form to be transmitted over the Internet. The encoded data was sent to the
Streaming Server, where it was saved on a hard disk to a file in the previously created directory
and, once saved, was read from that file into a RAM memory buffer that sent the data to the user
over the Internet once a sufficient amount of data (at least six or seven seconds of programming)
had accumulated. Essentially the same process occurred when the user engaged the “Record”
function, the only substantial difference between the “Watch” and “Record” functions being that
when a user engaged the “Record” function, the file saved to the hard disk was tagged as
permanent and automatically retained, whereas the file saved using the “Watch” function was not
automatically retained unless the user clicked “Record” while the show was still open on the
user’s web browser.^426
The plaintiffs moved for a preliminary injunction. The district court noted that the only
significant factual dispute for purposes of that motion concerned the operation of Aereo’s
antennas. Aereo contended that each of its antennas functioned separately to receive the
incoming broadcast signals. The plaintiffs asserted that Aereo’s antennas functioned collectively
as a single antenna, because the individual antennas were packed so closely together on a board
that they in effect had a shared metallic substructure which appeared to the incoming signals as
one continuous piece of metal. After extensive review of the conflicting testimony of the parties’
experts, the court determined that, based on the evidence at that stage of the proceedings,
Aereo’s antennas did indeed function independently – a crucial fact for applicability of the
Cablevision case to the facts at hand.^427
The district court then turned to the first element of establishing entitlement to a
preliminary injunction – likelihood of success on the merits. Aereo argued that Cablevision
applied to its system because, like the RS-DVR system in Cablevision, its system created unique,
user-requested copies that were transmitted only to the particular user that created them, and the
performances were thus not public. The plaintiffs distinguished Cablevision on its facts, arguing
that because Aereo’s subscribers were watching the programs as they were still being broadcast,
they were not using the copies Aereo created for time shifting purposes, and those copies
therefore did not “break the chain” of the over-the air transmission received by Aereo. Thus, the
plaintiffs contended, Aereo was engaged in a public performance that emanated from the original
broadcast signal itself, much like a community antenna which simply passes along a broadcast
(^425) Id. at 377-78.
(^426) Id. at 378-79.
(^427) Id. at 379-81.