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Summary:

A Boston judge refused to shut down TV streaming service Aereo, saying the service is like a remote DVR, not a public transmission. It added that any harm to broadcasters would only appear a few years from now.

Aereo, a controversial start-up that lets people watch TV on mobile devices for $8 a month, has won a significant new court victory in Boston where a federal judge refused a broadcaster’s request to shut down the service.

In a Thursday morning order, US District Judge Nathaniel Gorton refused to grant a temporary injunction to the broadcaster Hearst, which had argued that Aereo was rebroadcasting its Channel 5 signal without permission and infringing copyright.

In his ruling, the judge found that Aereo did not appear to violate copyright because its service is akin to a remote DVR service that lets subscribers watch and record private individual copies of the programs.

The judge acknowledged that Aereo could harm the broadcasters by encouraging people to cut their cable subscriptions, but said that a temporary injunction was not necessary because, “it seems more likely that the harm will take several years to materialize.”

The court also rejected Hearst’s claim that it would lose out on ad revenue because it couldn’t measure Aereo subscribers was “simply not true,” adding that Nielsen rating service now tracks online viewers.

The Boston ruling, which followed the reasoning of an influential New York appeals court decisions from earlier this year, means Aereo is now legal throughout four New England states and Puerto Rico. Broadcasters this week asked to take the case to the Supreme Court, citing conflicting rulings in California and the District of Columbia where Aereo remains unavailable.

Update: the broadcasters formally filed the Supreme Court petition.

Here’s the ruling (key findings on p. 11-13 and 18-19)

Aereo Boston Ruling

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  1. Excellent … another win for Aereo. I’ve used the service for a month and I love it!

  2. Whaa Whaa Whaa!. Your Honor. Someone has come up with a new technology that endangers my business model. I demand that you shut them down now!!!!!!

  3. Aereo will ultimately win this war. Only a fool would think that what they are doing is copyright violation. It’s clearly not. They are just renting a (remote) antenna and DVR to anyone that will pay them.

    The California appeals court ruled the other way because, first, they weren’t deciding on Aereo specifically, but something “similar”, and I have not yet seen an analysis of how similar FilmOn’s offering was to Aereo’s? Was the concept of their technology exactly the same, i.e. renting a remote antenna and DVR? Or was it some slightly different solution that perhaps was not as clear cut as Aereo’s?

    Second, if the technologies were/are exactly the same functionally, then the California appeals court ruled the way they did because they are deeply entrenched with the entertainment industry which is a major part of the state’s economy.

    I say all this as a California resident and someone who would like to be in the content-creation business. But I’m also a consumer, and I am completely rooting for Aereo in this.

    1. As far as I can tell, the key difference between Aereo’s rent-an-antenna model and FilmOn is that FilmOn doesn’t require a subscription. If you go to the website and they have a presence in your city, you can start watching local TV without even signing in. Now, I don’t have proof that each unique visitor is dynamically assigned an unused antenna on the fly, but I have a suspicion that by not requiring a subscription, they likely have just one antenna, and they are actually rebroadcasting the content publicly.

      Subscribing to FilmOn does get you some DVR space, but again, I’m not sure if you get your own DVR or they just archive everything and you can watch a copy later. They’re not as open with their technology as Aereo.

      On a slightly unrelated note that further skewed my view against FilmOn, when it was originally founded by actor Alki David, he first named the website BarryDriller.com (a parody of Aereo co-founder Barry Diller’s name) and the service Aereokiller. I feel like the whole thing was set up as some personal vendetta against Diller, and not necessarily design with the same legal finesse as Aereo.

  4. Wow! A judge who has done his homework about technology, and doesn’t think the Internet is “a series of tubes”. I wish there were more like him.

  5. FANTASTIC NEWS! (I hope they will come to Los Angeles now… It’s a very big market.)

  6. FANTASTIC! Another win for the people against the cable company monopoly.

    Now if we could just find a way for people to get internet access from someone other than the overpriced cable companies we’d really be moving into the future!

  7. ive been using aereo for a few weeks and its works great, im too far from boston for a digital antennae but i cant stand paying comcast for local tv. its bad enough that internet service costs 60+ is much rather pay aereo the few dollars for a simple but effective basic cable replacement. espsecially since comcast now scrambles all its stations. PIA

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