## Facts

- Broadcast television copyright holders sued Aereo, a subscription service that enabled users to watch and record over-the-air broadcasts via the internet.
- Aereo used thousands of small antennas at its facility; when a subscriber selected a program, Aereo assigned that subscriber an individual antenna to capture the over-the-air signal.
- For each requested program, Aereo created a unique, user-specific digital copy on storage space allocated to that subscriber.
- The subscriber could stream the program nearly contemporaneously with the broadcast or later; in either case, Aereo transmitted from that subscriber’s unique copy rather than from a shared copy.
- The broadcasters did not license Aereo and alleged Aereo’s near-simultaneous transmissions infringed the exclusive public-performance right under the Copyright Act.
- Aereo argued its system was governed by Second Circuit precedent holding that transmissions from user-specific copies to individual subscribers are not public performances.

## Issues

1. Whether Aereo’s near-simultaneous internet transmissions of broadcast programs, each made from a unique copy created at a subscriber’s request and sent only to that subscriber, constitute “public performances” under the Copyright Act’s transmit clause.
2. Whether the broadcasters were entitled to a preliminary injunction barring such transmissions based on likelihood of success (or serious questions plus a balance of hardships).

## Decision

- The Second Circuit affirmed the district court’s denial of a preliminary injunction.
- Applying controlling circuit precedent, the court held Aereo’s transmissions from unique, user-specific copies to single subscribers were not “to the public” and therefore were not public performances.
- Because the broadcasters did not show a likelihood of success on the merits (or serious questions overcoming controlling precedent), preliminary injunctive relief was not warranted.
- Judge Chin dissented, viewing Aereo as functionally equivalent to an unauthorized cable retransmission service engaged in public performances.

## Legal Principles

- Under the transmit clause, the “public performance” inquiry focuses on whether a particular transmission is capable of being received by the public, not whether many people can watch the same underlying work through separate transmissions.
- Where each transmission is made to a single subscriber from a single, unique copy created for that subscriber at the subscriber’s request, the transmission is not “to the public” for purposes of the public-performance right.
- For a preliminary injunction, the movant must show likelihood of success on the merits, or sufficiently serious questions going to the merits plus a balance of hardships tipping decidedly in its favor; failure on the merits defeats injunctive relief.

## Conclusion

The Second Circuit concluded that Aereo’s architecture—user-assigned antennas producing user-specific copies, with transmissions from those copies to only the requesting subscriber—fell within controlling circuit precedent and did not constitute public performances; accordingly, the broadcasters were not entitled to a preliminary injunction.


WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013)