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American Broadcasting Companies, Inc. v. Aereo, Inc.

United States District Court, Second Circuit

October 7, 2013

AMERICAN BROADCASTING COMPANIES, INC., et al., Plaintiffs,
v.
AEREO, INC., Defendant. WNET, et al., Plaintiffs,
v.
AEREO, INC., Defendant.

OPINION AND ORDER

HENRY PITMAN, Magistrate Judge.

I. Introduction

By letter dated July 2, 2013, defendant seeks reconsideration of that portion of the oral Order that I issued in this case on June 20, 2013 directing defendant to produce Joseph Lipowski and Chet Kanojia for an additional hour of deposition testimony and overruling defendant's privilege objections to questions concerning certain patent applications filed by defendant[1] (Letter of R. David Hosp, Esq. to the undersigned, dated July 2, 2013, at 1).

For the reasons set forth below, defendant's application is denied.

II. Facts

The facts giving rise to these actions are set forth in detail in the decisions of the Honorable Alison J. Nathan, United States District Judge, denying plaintiffs' motion for a preliminary injunction, and the Court of Appeals for the Second Circuit, affirming Judge Nathan's decision. American Broadcasting Cos. v. AEREO, Inc. , 874 F.Supp.2d 373 (S.D.N.Y. 2012), aff'd, 712 F.3d 676 (2d Cir. 2013). Familiarity with those decisions is assumed.

Plaintiffs (primarily broadcast television networks) allege that defendant is infringing their copyrights. The allegations arise out of defendant's service that intercepts broadcast television signals and re-transmits them over the internet to subscribing individuals and entities. Defendant also offers a remote recording functionality that allows subscribers to shift the time at which they view programs.

The present dispute arises out of questions posed at the depositions of Chet Kanojia and Joseph Lipowski, Aereo's Chief Executive Officer and Chief Technology Officer, respectively, concerning several patent applications Aereo has filed. All of the applications claim inventions for technologies that appear to be closely related to Aereo's business of re-transmitting broadcast television programming for receipt over the internet. For example, Patent Application 13/299, 194 is entitled "Antenna System with Individually Addressable Elements in Dense Array."[2] This application describes the background of the invention and summarizes the invention as follows:

BACKGROUND OF THE INVENTION
Over the air television, which is also referred to as terrestrial television or broadcast television, is a distribution mode for television content via radio frequency (RF) electromagnetic waves or radiation through the atmosphere. Some examples of well known television networks in the United States that broadcast over the air content are ABC, CBS, FOX, NBC, and PBS. Through a series of affiliate stations, these networks are able to blanket the country with broadcasted content. The result is that each one of these television networks is able to reach over 95% of all the households in the United States.
Television networks are always looking for ways to attract new customers and increase viewership. Recently, some television networks have been putting their programming online for people to access via private and public data networks such as the Internet. Typically, the television networks will upload content to their website or some other third party website, such as HULU.COM, that stream the content to users, sometimes for a fee. Today, the content that is available is often limited; sometimes, the most recent episodes are not available or the content is outdated.
At the same time, a wide variety of devices are available that can play audio and video content. In addition to the ubiquitous television, many now watch video on their personal computers and mobile computing devices, such as smartphones and tablet computers. Video content is usually accessed through the Internet using subscriber data networks, cellular phone networks, and public and private wireless data networks. Moreover, some televisions now have network connections. And, many game consoles have the ability to access video content using third-party software such as provided by Netflix, Inc.
SUMMARY OF THE INVENTION
Despite all of the new modalities for viewing video, over the air content broadcast by the traditional television networks is still generally only available through cable television subscriptions, satellite television systems, or by capturing the over the air broadcasts with a home-installed antenna. For users that do not subscribe to cable or do not have cable access, it is generally required that they install their own RF or satellite antenna in order to capture this broadcast content. Then, this captured content is generally only available for display ...

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