"Second Circuit Deals Blow to Rights of Broadcasters Under the Copyright Act"

In a recent decision – WNET, et al. v. Aereo, Inc.,No.  12 CV 1543, 2013 WL 1285591 (2d Cir. April 1, 2012) – the Second Circuit dealt a severe blow to broadcasters' rights under the Copyright Act by refusing to preliminarily enjoin Defendant Aereo, Inc. ("Aereo") from transmitting broadcasters' copyrighted programs to customers without paying any fee to the broadcasters.  Instead, the Second Circuit affirmed the district court's finding that the broadcasters could not demonstrate a probability of prevailing on the merits. 

This Stroock Special Bulletin examines the decision, in which the Second Circuit found that, because Aereo's system creates individual copies of each program, and because each transmission to individual subscribers is generated from unique copies, Aereo's transmissions are not "made to the public" as required to constitute an infringement of the broadcasters' public performance rights under the Copyright Act.