The Second Circuit’s ruling in the Aereo case yesterday was obviously bad news for broadcasters, but it was particularly bad for Fox.
In its separate lawsuit against Dish Network, Fox recently asked a federal court in California for an injunction barring the satcaster from marketing and selling the Hopper with Sling DVR. The network claims that that sending its broadcast signal over the Internet via Sling is an unlicensed public performance and infringement’s Fox’s copyright. Yet the majority in the Aereo case seems to regard Sling as presumptively legal.
From the majority opinion’s description of Aereo’s technology:
Aereo’s system thus provides the functionality of three devices: a standard TV antenna, a DVR, and a Slingbox-like device. These devices allow one to watch live television with the antenna; pause and record live television and watch recorded programming using the DVR; and use the Slingbox to watch both live and recorded programs on internet-connected mobile devices.
The majority then goes on to find what Aereo’s system does to be legal.
We conclude that Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not “public performances” of the Plaintiffs’ copyrighted works.
Even in his dissent, Judge Denny Chin seems not to question the legality of using a Slingbox. In a footnote, he describes the Slingbox as:
[A] set-top box that permits consumers to shift their television programming to their portable devices. Slingbox describes its service as “placeshifting”: “Placeshifting is viewing and listening to live, recorded or stored media on a remote device over the Internet or a data network. Placeshifting allows consumers to watch their TV anywhere.” …The Slingbox thus enables a consumer to view on a remote device content that he is already entitled to receive from a licensed cable company or other authorized source to view on his television.
That’s not quite an endorsement, but neither does Chin seem to regard placeshifting via the Internet to be intrinsically problematic.
The Dish case is playing out in a different federal circuit from the Aereo case, so the opinion by the Second Circuit is neither binding nor dispositive in the Dish case. But the Aereo majority’s seemingly blithe acceptance of Sling’s legality can’t have been welcome to Fox.