Broadcasters Ask Full 2nd Circuit to Re-hear Aereo Case
Broadcasters asked the full 2nd U.S. Circuit Court of Appeals to re-hear their case for a preliminary injunction against online TV service Aereo, in a petition for an en banc hearing filed Monday. In the filing, the plaintiffs, including major broadcasters such as Fox, NBCUniversal and Disney, said the panel made a “major error” in its 2-1 decision April 1 to deny the preliminary injunction to stop Aereo from distributing New York City TV signals to online subscribers without broadcaster consent. They said the court’s majority opinion “upends decades of settled expectations in the broadcasting industry."
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According to Pillsbury attorney John Hane, who represents broadcast clients, a majority of the 13 judges in the circuit will have to agree with the en banc petition for the Aereo case to be re-heard. “It’s not an unusual step,” Hane said of the filing. “People that don’t like a ruling will often try to get the case re-heard.” Hane said few such petitions are granted. A Fox spokesman said the petition is “an important next step in insuring protection of our copyrighted material.” Aereo did not comment on the filing.
In the petition, the plaintiffs said the circuit court ruling denying the injunction ignores previous cases and “threatens the over the air broadcasting industry” by undermining its ability to create new content. The appeals court’s April 1 ruling said Aereo’s business model, which relies on tiny individual antennas for each subscriber, is a “private performance,” which under law does not require retransmission consent. In the petition, the plaintiffs argue that the court overstepped its bounds. “Weighing the disparate interests of broadcasters, copyright owners, retransmitters and the public in determining whether to create exceptions to the statutory regime is properly left to Congress,” the petition says.
Hane said the chances for the petition may be aided by the lone dissenting opinion in the April 1 ruling by Judge Denny Chin. Many of the arguments in the petition are derived from Chin’s dissent, which called Aereo’s system a “contrivance” purposely designed to “take advantage of a perceived loophole in the law.” Hane said this may give the plaintiffs’ arguments additional weight with the judges. No date for a ruling on the en banc petition has been set, and the petition still concerns only a preliminary matter in the Aereo case, the rest of which is still before the U.S. District Court in New York.