Aereo Seen Likely to Be Enjoined After Oral Argument

Most of Nathan’s questions focused on the scope of a possible injunction against Aereo, said attorneys and officials connected with the case. In the wake of the Supreme Court decision against it, Aereo voluntarily “paused” its streaming TV and DVR offerings. Broadcasters have asked Nathan to require that the service stay down until their case against Aereo is decided on the merits. In 2012, Nathan originally ruled against a much narrower injunction that would have applied only in the jurisdiction of the 2nd U.S. Circuit Court of Appeals, but the appeal of that decision is what was overturned by the Supreme Court in June. Because the Supreme Court overturned a decision against an injunction, some sort of injunction is likely to be applied this time around, said a broadcast attorney not connected with the case. “It wouldn't be surprising if there's some sort of injunction,” said Fletcher Heald copyright attorney Kevin Goldberg.

Nathan’s focus on the scope of a possible injunction suggests that she has dismissed Aereo’s argument that it shouldn’t be enjoined at all, said attorneys. Aereo had argued in briefs filed in the case that because the Supreme Court majority opinion argued that Aereo’s service is similar to a pay-TV operator (see 1406260026), it is eligible to receive the same compulsory copyright license as cable companies and shouldn’t be enjoined from offering content in the way other multichannel video programming distributors do. Broadcasters responded in their own briefs by pointing to other over the top operators that were not treated as MVPDs, such as ivi. The brevity of the hearing might also be a negative sign for Aereo, said Pillsbury's John Hane, a lawyer not connected to the case. Shorter hearings can indicate that a judge has already dismissed many of the arguments from the side that had more to prove, he said.

Aereo had also argued that because the Supreme Court decision left intact the Cablevision case that serves as the legal underpinning for the cable operator's remote DVR service, any injunction against Aereo’s technology shouldn’t apply to users of its remote DVR service watching time-shifted content. Nathan asked questions about how much of a time delay would mean content didn't fall under the injunction, attendees said. It’s difficult for Aereo to find a legal basis for why a specific time delay would make it acceptable for the company to retransmit a show, a broadcast attorney said. Any amount of time would likely be seen as arbitrary, the attorney said. Instead, if Nathan lets Aereo continue streaming time-shifted content, it could be limited to doing so after the original broadcast has ended, the attorney said.

The impact of an injunction against Aereo may not be as relevant as it once was, with the company having recently increased its lobbying efforts, said Guggenheim Partners analyst Paul Gallant. Aereo officials recently met with FCC leadership about the commission’s reopening of a proceeding on redefining MVPDs to include over-the-top services. Aereo also registered Senior Vice President-Communications and Government Relations Virginia Lam as its first internal lobbyist Tuesday (see 1410150025). Aereo had previously hired Bingham McCutchen to lobby on its behalf, and plans to continue using the firm, Lam told us. If Aereo’s lobbying efforts are successful, it may be able to have the rules that are hampering it in the courts changed, attorneys have said.