Aereo: Coming Soon to a City Near You…Or Is It?

September 10, 2013

Tuesday, September 10, 2013, by Natalie Deyenka
This past April 2013, things were looking pretty good for Aereo, a company that offers streaming from major broadcast channels on a number of compatible devices such as iPhones, iPads, or televisions using a system of individual antennas.  Not too thrilled at the prospect of having their content broadcast for free, a number of companies filed suit against Aereo, alleging copyright infringement for public performance of their content.
However, in what was a huge disappointment for broadcasting companies, in April 2013, the Second Circuit Court of Appeals ruled in favor of Aereo.  Overall, things were looking pretty good for Aereo, who has been making plans to expand to different parts of the country.  Currently, Aereo is available in Boston, New York, and Miami but it plans to expand to at least 22 other cities across the country, including the cities of Philadelphia, Minneapolis, Chicago, Houston, and Washington D.C.

However, Aereo’s good luck may be about to run out.

Things looked even more promising for Aereo when one of the companies that had previously tried to sue it, Time Warner Cable, started voicing some support for the service as a means of managing a fee dispute between itself and CBS.
However, Aereo’s good luck may be about to run out.  A copycat company similar to Aereo, FilmOn X (formerly known as Aereokiller) has not had the same success in the courtroom.  In December 2012, a federal district court in the Ninth Circuit granted an injunction against the company, notwithstanding the contrary decision in the Second Circuit regarding Aereo in the case, Fox Television Stations Inc. v. BarryDriller Content Systems PLC. 
The California ruling against Aereokiller (now FilmOn X) did not appear to faze Aereo too much and Aereo continued to make plans to expand westward, however, just not too far westward.  However, last week, in Fox Television Stations, Inc. v. FilmOn X LLC, a federal district court in Washington D.C. found the Ninth Circuit’s decision more reasonable than that of the Second Circuit and held that FilmOn X was in violation of the Copyright Act and was committing copyright infringement.  Oh wait.  Wasn’t Aereo planning on expanding its service to serve precisely that area?  Now it’s starting to look like that’s no longer such a good idea.  To further complicate things, Aereo is meeting progressively stronger resistance in places where it has expanded, for example, Boston, where it is being sued by an ABC affiliate.
To further complicate things, this week, the Ninth Circuit heard arguments in an appeal of its BarryDriller decision.  With the recent decision in Washington D.C., as well as the district court decision in the Ninth Circuit, there seems to be good reason to think that the Ninth Circuit Court of Appeals will uphold the injunction against FilmOn X.  The result?  Two competing decisions from two different circuits might just mean a trip to the Supreme Court.
In short, Aereo might very well be coming to a city near you, but will it be there to stay?