SECOND CIRCUIT DENIES REVIEW OF THE NEW YORK AEREO CASE

The U.S. Court of Appeals for the Second Circuit denied today a petition for review, en banc, of an earlier decision by a three-judge panel of the Court that had ruled in favor of Aereo and against broadcasters in the New York case.
 
On April 1, 2013, the panel concluded in the case that Aereo's service did not violate the broadcasters' exclusive right to "publicly perform" their copyrighted television programs.  Broadcasters asked the full Second Circuit Court to review that decision, but a majority of judges declined to rehear the case.  Two judges issued a strong dissent, explaining that the panel decision had "already had a significant impact on the entertainment industry" because it threatened to undermine the retransmission consent regime vital to broadcast television.
 
Although the order denying rehearing is a disappointment for broadcasters, the decision is limited to broadcasters' request for a preliminary injunction on the "public performance" issue.  The case against Aereo is moving forward in the district court, where the parties have asked the court to rule on other aspects of the broadcasters' copyright claims.
 
In a case involving a similar Internet streaming service, FilmOn X (originally, "Aereokiller"), a California federal court ruled in favor of broadcasters and prohibited the service from operating within the Ninth Circuit.  FilmOn X appealed the decision, and the Ninth Circuit will hear argument in August.
 
We will keep you informed of further developments in these important cases.

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