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Update on Aereo Case: CNET Take

by John on 06/02/2012

Based on this story from CNET, you would think Aereo is going to win its case against the broadcasters.

Granted, CNET has a bias toward internet and digital enterprises rather than broadcasting.

But here’s a portion of the story.  It’s a little technical.

This was illustrated again when [Judge] Nathan refused to accept some of the arguments made by Steven Fabrizio, one of the broadcasters’ attorneys, about how Cartoon Network v. CSC Holdings, commonly known as the Cablevision decision, affected Aereo. Nathan interrupted and peppered Fabrizio, a former attorney for the Recording Industry Association of America, with questions and comments during his closing arguments.

Cablevision, a cable company, sought to create and host its own TiVo like digital video recorder. Many of the same companies involved in suing Aereo tried to stop Cablevision. In 2008, the U.S. Court of Appeals for the Second Circuit found that the automated copying of content at the user’s request was not direct copyright infringement. The Appeals court also found that replaying movies or music to an original audience (after a live performance) was not necessarily a public performance, and, finally, that buffering was not unlawful copying.

“Doesn’t Cablevision bind me here?” Nathan asked.

When Fabrizio told her that Cablevision didn’t apply in the Aereo case, Nathan seemed dissatisfied.

“At some point you have to tell me how [the Cablevision] analysis should affect my decision.”

The more people I confer with over this case, the more I realize this is a game changer.

I had an interesting dinner with family friend Jack O’Hurley.  Jack works for North Social, a social network marketing company.

Jack agreed with me that this case is dam ready to break.  The old media is about to burst in favor of the new media.  Even if this case doesn’t move in favor of Aereo, others will follow.

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