plaintiffs to their earlier decision, strategic or otherwise, to seek a preliminary injunction limited
in scope to retransmission of their copyrighted works while the works were still being
broadcast.^476
The court also rejected Aereo’s attempt to narrow the scope of the injunction to a modest
delay, such as ten minutes, after the complete airing of the broadcast. Aereo argued, based on
some colloquy at the Supreme Court oral argument, that the Supreme Court intended its ruling to
be limited to “near-live retransmission,” and specifically something less than a ten-minute delay.
The district court rejected this argument, ruling that any question of whether time-delayed
retransmissions should be enjoined would be addressed upon consideration of a permanent
injunction following the close of discovery.^477
The court also refused Aereo’s request to revisit its earlier findings regarding Aereo’s
harm to the plaintiffs’ retransmission consent negotiations and harm caused by the inability of
Nielsen to measure Aereo’s viewership on the ground that there was no present basis for a
finding that the plaintiffs would be irreparably harmed on those two grounds. The court noted
that Aereo did not lodge an interlocutory cross-appeal of the court’s preliminary irreparable harm
findings and so the court concluded that it need not revisit its earlier factual conclusions
regarding Aereo’s likely damage to the plaintiffs for purposes of entry of the preliminary
injunction. In addition, Aereo had not challenged any of the court’s other findings of irreparable
harm to the plaintiffs based on loss of subscribers due to cord cutting, loss of control over
copyrighted content, and damage to relationships with content providers, advertisers, or
licensees. Thus, even putting aside the two factual findings that Aereo sought to relitigate, there
was still substantial evidence of irreparable harm to the plaintiffs that Aereo did not challenge.
Finally, the court noted that its earlier conclusion that the balance of hardships did not tip
decidedly in the plaintiffs’ favor was driven largely by its conclusion that the plaintiffs were
unlikely to succeed on the merits. Given the Supreme Court’s ruling, the plaintiffs were now
likely to succeed on the merits, and therefore the plaintiffs no longer needed to show that the
balance of hardships tipped decidedly in their favor. Nor could Aereo claim harm from its
inability to continue infringing the plaintiffs’ copyrights.^478
The district court also rejected two additional defenses interposed by Aereo to the
preliminary injunction:
The Section 111 Defense. Aereo argued that, in view of the Supreme Court’s rationale
for its decision that Aereo performs in ways similar to cable television systems and therefore
Congress would have intended the transmit clause to cover Aereo’s activity, Aereo’s system
should be considered a “cable system” that is entitled to a compulsory license under Section 111
of the copyright statute. The court rejected Aereo’s argument for a number of reasons. First, the
court found that the argument suffered from the fallacy that simply because an entity performs
copyrighted works in a way similar to cable systems it must then be deemed a cable system for
(^476) Id. at 36-37.
(^477) Id. at 13, 37-38.
(^478) Id. at *30-33.