NEW YORK Judge Denny Chin says the court got it wrong with a ruling that allowed Cablevision to deploy server-based digital video recording without content provider consent. That 2008 decision redefined TV signal copyright law, and is now the basis of Aereo's contention that it has a legal right to redistribute those signals without permission. Aereo is the New York-based start-up aggregating and reselling broadcast signals to mobile subscribers.
Cablevision was wrongly decided, said Judge Chin in a dissent of his colleagues' refusal this week to convene an en banc hearing on WNET, et al, v. Aereo.
Rehearing these cases en banc would also give the court the opportunity to reconsider Cablevision, he said.
In the Cablevision case, networks sued over the provider's deployment of set-tops that enabled storage of content at Cablevision facilities for playback at home. The legality of this remote storage rested on whether or not playback was deemed a public performance, and therefore subject to copyright protection; or a private performance not likewise protected.
The U.S. District Court for the Southern District of New York, then under Judge Chin, defined Cablevision's remote DVR as a public performance based on the collective audience of a given performance. The Second Circuit vacated and reversed the decision and the U.S. Supreme Court denied cert.
Judge Chin continues to maintain that Cablevision's technology comprises a public performance.
It makes no difference whether each member of the public receives the work by means of several individualized, asynchronous transmissions, or a single shared transmission, he wrote.
Cablevision's focus on whether the public is capable of receiving each individual transmission and the technicalities of how that transmission process works is incompatible with the statute, he wrote. By declining to rehear these cases en banc, the court misses an opportunity to reconsider Cablevision and correct its misinterpretation of the Copyright Act.
Even if Cablevision was correctly decided, Judge Chin said it should be limited to the facts of the case and not applied as a precedent for Aereo. Cablevision agreed in an amicus brief filed with the Second Circuit last September.
Aereo's system is nothing like much less materially identical' to the RS-DVR for copyright purposes, Cablevision's brief stated. Unlike Aereo, Cablevision operates a licensed cable system that retransmits content to subscribers pursuant to agreements with content providers.
Aereo claims to retransmit TV signals to individual subscribers through one of thousands of dime-sized antennas closely packed in arrays, making the service a private performance.
Under this theory, Aereo maintains that it may, for example, stream the Super Bowl live' to 50,000 subscribers and yet, because each subscriber has an individual antenna and a unique' copy of the broadcast, these are not public' but private' performances, Judge Chin wrote.
Several radio frequency engineers have said that because of the nature of UHF TV signals, an array of tiny antennas would work instead as a single antenna, rendering Aereo's service a public performance.
The broadcast plaintiffs in the Aereo case had requested a hearing of the entire Second Circuit Court of Appeals bench following the April 1 denial of an injunction by a three-judge panel, which included Judge Chin. He also dissented on that decision, calling Aereo's technology a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.
With his most recent dissent, Judge Chin referred to Aereo's technology as a sham.
See
July 16, 2013, Second Circuit Won't Hear En Banc Aereo Appeal
A federal appeals court denied a request by broadcasters for all 13 judges to consider their request for an injunction against Aereo.
July 10, 2013, Boston ABC Affiliate Sues Aereo
WCVB-TV, the Hearst-owned ABC affiliate in Boston, has filed suit against Aereo for copyright infringement.
July 9, 2013: Aereo Launches on PlayOn Software
MediaMall Technologies said Tuesday that its PlayOn software will now make Aereo local TV channels accessible to Aereo TV users on select gaming consoles, set-top boxes and Android devices. from TWICE
June 28, 2013: Aereo's Unlikely Proposition
Anyone who has taken antennae 101 knows that tiny pieces of metal separated by tiny distances act as one piece of metal.
April 1, 2013, Aereo, Two-Love
Broadcasters were denied an injunction against signal aggregator Aereo for the second time today when the U.S. Court of Appeals for the Second Circuit rejected their premise.
September 25, 2012, Cablevision Friends Broadcasters in Aereo Case
Cablevision is urging a federal court to reverse a July ruling that allowed Aereo to continue retransmitting broadcast TV signals without permission.
August 6, 2012: Report: Aereo Legality Could Hinge on Patents
Aereo's copyright infringement case may rest on its patents, according to ReadWriteWeb, which quotes an IP expert saying that patents typically have no relevance in copyright cases, but that Aereo is an exception.
August 2, 2012: Aereo Dangs the Torpedoes, Offers Free Trial, $1-a-day Pass
A new feature allows Big Apple denizens to try Aereo for free for a continuous one-hour period each day, and for a $1 a day for those who want to try it out a little longer.
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NEW YORK Judge Denny Chin says the court got it wrong with a ruling that allowed Cablevision to deploy server-based digital video recording without content provider consent. That 2008 decision redefined TV signal copyright law, and is now the basis of Aereo's contention that it has a legal right to redistribute those signals without permission. Aereo is the New York-based start-up aggregating and reselling broadcast signals to mobile subscribers. 
