one respect the Aereo system presented a stronger case than Cablevision for attaching
significance to the copies made because, unlike Cablevision in which multiple copies were all
created from a single stream of data, each copy made by Aereo’s system was created from a
separate stream of data.^432
The district court also rejected the plaintiffs’ attempt to distinguish Cablevision on the
ground that Cablevision addressed only copies used for time shifting. The court noted that
nowhere in Cablevision did the Second Circuit articulate a requirement that the copies be used
for time shifting in order to “break the chain” of transmission from the original broadcaster to the
end user. Rather, the Second Circuit’s analysis of the public performance claim was entirely
directed toward explaining why the copies created by the system in Cablevision were significant
and resulted in performances to a limited, non-public audience. Nor did anything in Cablevision
turn on the times at which individuals received their transmissions.^433
Finally, the court rejected the plaintiffs’ suggestion that Cablevision addressed only
transmissions using the same medium as the initial broadcast that were made to the same device
and to the same place as the initial transmission. Although points of distinction from
Cablevision, the court found no reason to believe that they had any material bearing on who was
“capable of receiving” a particular transmission or whether Aereo “breaks the chain” of
transmission.^434
Accordingly, the court concluded that the plaintiffs were unlikely to succeed on the
merits of their public performance claim.^435 The court, however, issued some words of caution
about the scope of its decision. First, the court made clear that it did not accept Aereo’s position
that the creation of any fixed copy from which a transmission is made always defeats a claim for
a violation of the public performance right, because such position would eviscerate the transmit
clause given the ease of making reproductions before transmitting digital data. Nor did the court
need to resolve Aereo’s argument that its antennas, standing alone, defeated the plaintiffs’ claims
that it was engaged in a public performance. Instead, the court merely pointed out that it had
(^432) Id. at 386-87.
(^433) Id. at 387-90. The court found the plaintiffs’ argument that “complete” time shifting should be required to fit
within the contours of Cablevision even less persuasive, as the argument was no longer tied to the rationale that
time shifting is required to “break the chain” of the original transmission. For example, an Aereo user who
began watching a recording of the Academy Awards, initially broadcast at 6:00 p.m., one minute before the
program ended at 11:00 p.m. would not have engaged in complete time shifting, although the chain of
transmission would certainly have been “broken” across the nearly five hours of recording before viewing
commenced. The court found that the plaintiffs had not provided an argument as to why a user who began
watching a recording of a program one minute (or five minutes, or ten minutes) before the broadcast ended was
part of a public performance but a user who began watching a minute after the program ended was not. Id. at
393-94.
(^434) Id. at 394.
(^435) In view of its conclusion that the plaintiffs had failed to demonstrate they were likely to succeed in establishing
that Aereo’s system resulted in a public performance, the court found it need not reach the issue of whether
Aereo also could escape liability because it was the consumer, not Aereo, who made the transmissions that the
plaintiffs complained of. Id. at 396.