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CSUSA NY Chapter May 1 Course Materials
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Aereo: In the Wake of the Supreme Court Argument

Together with the New York Intellectual Property Association, and in recognition of World IP Day, the New York Chapter of the CSUSA is extending its season with a special program reviewing the Aereo broadcast streaming case argued in the Supreme Court on April 22nd.

The Supreme Court will review a Second Circuit ruling permitting Aereo, Inc. to continue streaming over-the-air television broadcasts to its paying subscribers without licenses from the networks or other content providers. The Second Circuit majority affirmed the district court’s denial of a preliminary injunction, holding that Aereo’s dedication of one antenna to each subscriber at any given time (hence thousands of separate antennas) allowing each transmission to go to only a single user does not constitute a "public" performance and therefore does not violate the copyright owners' public performance right. Second Circuit judge Denny Chin argued, in dissent, that the Aereo service is "over-engineered" to take advantage of a loophole in the Copyright Act’s “Transmit Clause” in the definition of a public performance. With federal courts in Massachusetts and Utah ruling for and against Aereo, respectively, and similar cases for FilmOnX in California and Washington, D.C. following Judge Chin's lead, this issue is ripe for Supreme Court review and our discussion of what constitutes a "public performance" under the Copyright Act.

Barry Werbin will tee up the program with an overview of the legal landscape of Aereo and similar services, and then moderate a discussion with Jonathan Band and Hillel Parness, who have taken opposite sides on the issue. Mr. Band is counsel of record on the amicus brief submitted by the Computer & Communications Industry Association and the Internet Association in support of Aereo’s position. Mr. Parness is counsel of record on the amicus brief submitted by the New York Intellectual Property Law Association in support of the networks’ position.


TABLE OF CONTENTS

1. Speaker Biographies

2. Am. Broad. Cos., Inc. v. Aereo, Inc. 874 F.Supp.2d 373 (S.D.N.Y.2012)

3. WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 686 (2d. Cir. 2013).

4. Brief for Center for Democracy & Technology, et al. as Amici Curiae Supporting Neither Party, Am. Broad. Cos., Inc.. v. Aereo, Inc., __ U.S. __ (2014) (No. 13-461).

5. Brief for The New York Intellectual Property Law Association as Amicus Curiae Supporting Petitioners, Am. Broad. Cos., Inc., v. Aereo, Inc., __ U.S. __ (2014) (No. 13-461).

6. Transcript of Supreme Court Argument held April 22, 2014
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