found Aereo’s use of single antennas to reinforce its conclusion that the copies created by
Aereo’s system were unique and accessible only to a particular user, as they indicated that the
copies were created using wholly distinct signal paths. Because the copies were created from a
signal received independently by each antenna, in order to find a “master” copy that was
arguably being transmitted, the court would have been required, contrary to Cablevision, to look
back to the incoming over-the-air signal rather than simply an earlier step in Aereo’s process.
Aereo’s antennas thus reinforced the significance of the copies its system created and aided the
court in finding that Aereo did not create mere facilitating copies.^436
As such, the Court’s holding that Plaintiffs have not demonstrated a likelihood of
success is limited. There may be cases in which copies are purely facilitory, such
as true buffer copies or copies that serve no function whatsoever other than to
pass along a clearly identifiable “master” copy from which the transmission is
made. These facts, however, are not before the Court today.^437Turning to the other elements for a preliminary injunction, the district court found that
the plaintiffs had demonstrated they would suffer irreparable harm because Aereo would damage
their ability to negotiate with advertisers by siphoning viewers from traditional distribution
channels, in which viewership is measured by Nielsen ratings, into Aereo’s service which is not
measured by Nielsen, artificially lowering those ratings. Similarly, by poaching viewers from
cable or other companies that license the plaintiffs’ content, Aereo’s activities would damage the
plaintiffs’ ability to negotiate retransmission agreements, as those companies would demand
concessions from the plaintiffs to make up for the decrease in viewership. Aereo’s service would
also harm the plaintiffs’ streaming of their content on their own web sites.^438
With respect to the balance of hardships, the court found that the balance did not tip
decidedly in favor of the plaintiffs. The harm to Aereo of a preliminary injunction would be
substantial, as it had sufficient capital to continue operations for just six to seven months, after
which it would likely shut down absent investment of further capital. An injunction was also
likely to cause Aereo to lose employees and damage its ability to attract investors to obtain new
capital, and to diminish its competitive advantage in launching a unique and innovative product.
Having concluded that Aereo’s service was likely lawful, the court ruled that it could not
disregard the harms to Aereo that an injunction would cause by assuming its business was
founded on infringement.^439
In sum, the district court concluded that because it could not accept the plaintiffs’
attempts to distinguish Cablevision, the plaintiffs had not shown a likelihood of success on the
merits. And although they had demonstrated they faced irreparable harm, they had not
(^436) Id. at 396.
(^437) Id.
(^438) Id. at 397-99.
(^439) Id. at 402-03.