Two of the three judges found that the TV networks that filed the lawsuit are unlikely to prevail when the case is brought to trial. The third dissented, and I find his reasoning a little twisted.
Recall that, in order to obey copyright laws that each viewer access his own physical TV antenna to stream over-the-air channels, Aereo installed large banks of dime-sized antennas. Each subscriber gets access to one of those every time he watches something.
Judge Denny Chin wrote, “The system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.” Well, yeah. It would have been a lot simpler to use one common antenna and copy the signal to everybody, but Aereo was forced into that “over-engineering” to make sure it obeys the law. What’s the problem with that?
I wonder if this comes too late to work into the keynote speech at next week’s NAB Show. Broadcasters are not happy about the possibility of some of their lucrative retransmission consent fees to viewers with OTA antennas. In a statement, NAB Executive Vice President of Communications Dennis Wharton said “NAB is disappointed with the Second Circuit’s 2-1 decision allowing Aereo to continue its illegal operations while broadcasters’ copyright actions are heard. We agree with Judge Chin’s vigorous dissent and, along with our members, will be evaluating the opinions and options going forward.” So I guess that next week, we’ll all have more to talk about.