Private or Public? The Developing Circuit Split on Internet TV Retransmission

It appears that a Circuit split is developing on the issue of whether Internet services that transmit network television programs are engaged in a transmission to the public in violation of the networks' copyrights.  The networks argue that the Internet streaming services (such as Aereo) are engaged in public transmissions because large numbers of members of the public can access television programs using these services; the streaming services argue that they merely facilitate one-to-one private transmissions because their technology uses multiple mini-antennas, each dedicated to one user.

As this blog noted in April, the Second Circuit has ruled that Aereo does not violate the copyrights of television networks when Aereo transmits television programs to its subscribers.  The crux of the Second Circuit's analysis is that because Aereo's central broadcasting facility uses a large number of tiny antennas that are each (if only temporarily) assigned to an individual