Yesterday, we noted that Judge Nathan had dismissed a state law unfair competition claim brought against Aereo, an online television service, on the grounds that it was preempted by the Copyright Act. Today, the Electronic Frontier Foundation and Public Knowledge moved for permission to file an amicus brief on behalf of Aereo to counter the surviving claims against Aereo under the Copyright Act itself. In the amicus brief attached to the motion, the EFF and PK argue that Aereo’s business is protected by Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), which held that “the transmission of a copyrighted work is a private performance outside the exclusive rights of the copyright owner when it is one-to-one, that is, made to a single individual or family and social acquaintances.” Here, the amici argue that the transmittal of broadcast television over the internet is no different from recording live TV on a VCR or DVR and watching it (among friends or alone) at a later time.
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