Originally posted 2013-04-12 12:20:01. Republished by Blog Post Promoter
Familiarity of the reader with Part One is presumed.
As I read the Second Circuit decision, I was pleased—for reasons I can’t quite, and won’t bother trying to, articulate—that the appellate court was affirming the denial of a preliminary injunction in part, at least, because the granting of the injunction would probably have “severely harm[ed] Aereo, likely ending its business.”
Yet I was at the same time bothered by something I couldn’t quite put my finger on, until I did, and it was nothing other than the acknowledgment by the Second Circuit (immediately preceding the one just quoted) that “the [district] court concluded that the Plaintiffs had demonstrated a likelihood that they would suffer irreparable harm in the absence of a preliminary injunction.” Which means, of course, that right now—and since March 14, 2012, when Aereo began providing its service to subscribers… and through tomorrow, and the day after, and the day after that… until such time as the plaintiffs prevail in the two lawsuits pending in the Southern District of New York (and are awarded a permanent injunction), an eventuality Judge Nathan has deemed unlikely as a matter of law, which ruling the Second Circuit has affirmed… the plaintiffs, every broadcast network in New York City, are being irreparably harmed.
How, exactly? The appellate decision doesn’t discuss the harms to the plaintiffs, because it doesn’t need to. The Second Circuit agreed that the plaintiffs “are not likely to prevail on the merits,” so its discussion of the harms claimed by each side of the dispute are minimal. “Plaintiffs do argue that any harm suffered by Aereo should be disregarded in the balance of hardships analysis because Aereo’s business is illegal,” the Second Circuit decision reads, “…[b]ut this argument hinges on the conclusion that Aereo’s business infringes the Plaintiff’s copyrights,” which the court concluded it does not, at least “on the limited question before us… whether Aereo’s transmission of unique copies of recorded programs to the Aereo users who directed that they be created are public performances.” So we must seek our answer elsewhere. Perhaps in the district court opinion.
But before we look there, let’s think about this like regular folks. Regular folks don’t read court opinions. Regular folks ask whether something feels right or wrong. And this feels at once both right and wrong.
Imagine that you live in New York City. As a NYC resident, when you’re not at a Yankees game or ice skating at Rockefeller Center or having lunch with, say, Michael Bloomberg at Ray’s Famous Original Ray’s Pizza, you might watch some broadcast television, which you don’t pay for, since you have an antenna attached to your top-of-the-line widescreen HD set in your 350-square-foot studio apartment that you share with a roommate and a cat. But when you get home from your pizza date your roommate and his girlfriend and her friend are using the TV to play video games (only ironically, though)… but you’re not out of luck, since you’re an Aereo subscriber! So you take your iPad to your freecycled futon in your corner of the room and you log in and request that the new episode of whatever show everybody likes that’s playing right now be streamed to your Internet-capable device.
Where’s the harm in that? Read More…