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Broadcasters Win Preliminary Injunction Against Aereo

Aereo's contention that it should be treated like a cable company is a "fallacy," judge says.

Reuters / Brendan McDermid

A New York federal judge on Thursday barred embattled video streaming company Aereo from transmitting the programs of television broadcasters as they are being shown, blocking its bid to operate like a traditional cable system.

The ruling was another win for major broadcasters, whose copyrights the U.S Supreme Court in June said Aereo violated in retransmitting the programming to subscribers’ devices via the Internet.

Aereo shuttered its service three days after the high court’s decision and has since been pushing the courts and regulators to see it as analogous to cable, eligible for a license under the Copyright Act.

“Doing its best to turn lemons into lemonade, Aereo now seeks to capitalize on the Supreme Court’s comparison of it to a (cable) system,” U.S. District Judge Alison Nathan said in her ruling.

Aereo’s contention that this means it actually is a cable system is a “fallacy,” she said.

Since her ruling now matches decisions against Aereo in other parts of the country, she said the broadcasters are entitled to a nationwide preliminary injunction.

Aereo, she said, “cannot claim significant hardship if an injunction issues, while plaintiffs can still claim harm if an injunction does not issue.”

“We are reviewing the decision and evaluating our options moving forward,” Aereo spokeswoman Virginia Lam said.

Nathan offered Aereo some consolation in refusing the broadcasters’ demand she also bar delayed programs. The two sides will have to explore that issue in arguing over a permanent injunction.

Aereo’s future became imperiled when the Supreme Court ruled on June 25 that the company had infringed broadcasters’ copyrights by capturing live and recorded programs through antennas and transmitting them to subscribers who paid $8 to $12 a month.

In an emergency plea to Nathan in August, Aereo asked that it be allowed to operate like a cable system, saying it was “figuratively bleeding to death,” but the judge denied the request.

The company also met with officials at the Federal Communications Commission earlier this month in an attempt to be reclassified as a “multichannel video provider” like cable and satellite companies. This would allow the company to retransmit TV signals for a fee.

Aereo suggested such a move would allow for more competition in the video marketplace.

Thursday’s ruling was a victory for broadcasters including CBS, Comcast’s* NBC, Walt Disneys ABC and Twenty-First Century Fox’s Fox, which Aereo did not pay for programming.

The case is American Broadcasting Cos et al v. Aereo Inc, U.S. District Court, Southern District of New York, No. 12-01540.

* Comcast owns NBCUniversal, which is a minority investor in Revere Digital, Re/code’s parent company.

(Reporting by Andrew Chung; Editing by Chizu Nomiyama and Tom Brown)

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