-- “[T]he history of cable broadcast transmissions that led to the enactment of the
Transmit Clause informs our conclusion that Aereo ‘perform[s],’ but it does not determine
whether different kinds of providers in different contexts also ‘perform.’”^472
-- “We have said that [‘the public’] does not extend to those who act as owners or
possessors of the relevant product. And we have not considered whether the public performance
right is infringed when the user of a service pays primarily for something other than the
transmission of copyrighted works, such as the remote storage of content. See Brief for United
States as Amicus Curiae 31 (distinguishing cloud-based storage services because they ‘offer
consumers more numerous and convenient means of playing back copies that the consumers
have already lawfully acquired’ (emphasis in original)).”^473
-- “Finally, the doctrine of ‘fair use’ can help to prevent inappropriate or inequitable
applications of the Clause.”^474
The District Court’s Decision on Remand
On remand, the district court ruled that the plaintiffs were entitled to a nationwide
preliminary injunction prohibiting Aereo from retransmitting the plaintiffs’ copyrighted works at
any time while the works were still being broadcast. This was the scope of injunction that the
plaintiffs had originally sought and the district court denied. On remand, the plaintiffs sought to
broaden the scope of the preliminary injunction to preclude any streaming or retransmission of
the plaintiffs’ works over the Internet, regardless of when those retransmissions occur. The
district court rejected this broadened scope, noting that the narrower scope of injunction was the
one sought at the time of the original evidentiary hearing held by the court, and both the Second
Circuit and the Supreme Court understood the plaintiffs’ motion to be limited to that scope when
they rendered their respective decisions.^475
The plaintiffs contended that the Supreme Court’s reasoning in its decision made clear
that Aereo’s retransmission of the plaintiffs’ programs to Aereo’s subscribers are public
performances, regardless of whether the retransmissions are made at the same time or at different
times, and a broader scope of injunction was therefore warranted. The court noted that the
plaintiffs might have a valid argument that the Supreme Court’s reasoning cast doubt on any
distinction between near-simultaneous and fully time-shifted retransmission of copyrighted
works for the purposes of determining whether Aereo performed publicly. But the Supreme
Court had been careful to limit its holding to the case that the plaintiffs decided to put before the
courts at the preliminary injunction stage. And the Supreme Court had explicitly noted that,
although Aereo’s subscribers could instead direct Aereo to stream the program at a later time,
that aspect of Aereo’s service was not before the Court. Accordingly, the district court held the
(^472) Id.
(^473) Id. at 2510-11.
(^474) Id. at 2511.
(^475) American Broadcasting Cos. v. Aereo, Inc., 2014 U.S. Dist. LEXIS 150555 at *33-39 (S.D.N.Y Oct. 23, 2014).