In Boston case, Aereo wins another round against a broadcaster

Reuters

By Erin Geiger Smith

NEW YORK, Oct 10 (Reuters) - Online TV service Aereo Inc haslogged another court victory, with a federal judge refusing totemporarily shut down the IAC-backed start-up in a lawsuitbrought by a Boston station owned by Hearst Television Inc.

U.S. District Judge Nathaniel Gorton in Boston said Thursdaythat WCVB-TV had failed to show it was likely to prevail oncopyright claims against Aereo, as he ruled that Aereo couldcontinue providing users with WCVB programming while the lawsuitgoes ahead.

The Boston case is one of several around the country againstAereo. Fox Broadcasting Company and three localstations filed a lawsuit against Aereo on Monday in federalcourt in Utah, following Aereo's launch there on Aug. 19.

Aereo, backed by Barry Diller's IAC/Interactive Corp, charges about $12 a month to watch live or recorded TVchannels on computers or mobile devices. The TV industry seesthe service as a threat to its ability to control subscriptionfees and generate advertising income, its two main sources ofrevenue.

In New York, Walt Disney Co's ABC, Comcast Corp's NBC, Fox and CBS Broadcasting are among thoseclaiming that Aereo's service amounts to stealing theirproprietary content. In April the U.S. 2nd Circuit Court ofAppeals ruled that Aereo could continue to operate while the NewYork litigation moves forward.

The main question in all the suits is whether Aereo'stechnology provides users with a "public performance" of theplaintiffs' content. Copyright owners have the exclusive rightto public performance of their works.

In Thursday's ruling, Gorton said he found Aereo'sexplanation that a user enjoys only private performances becausethe user views only the unique copy of a show generated on hisbehalf to be more plausible.

"We will immediately appeal the court's decision that allowsAereo to continue to engage in a commercial business thatunlawfully profits by using WCVB's copyrighted broadcasts andshows," WCVB said in a statement.

Hearst had argued that it would suffer irreparable financialharm if Aereo was allowed to show WCVB content while the suitproceeds.

While Gorton agreed that Aereo could suffer in its abilityto negotiate fees with subscribers, that harm would likely takeyears to develop, he said, and thus there is time to allow thelitigation to play out.

Aereo's chief executive, Chet Kanojia, said in a statementthat the ruling "makes clear that there is no reason thatconsumers should be limited to 1950s technology to accessover-the-air broadcast television."

Aereo announced on Thursday that it will release its firstAndroid app later this month.

The case is Hearst Stations Inc v. Aereo, U.S. DistrictCourt for the District of Massachusetts, No. 13-11649.

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