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In Boston case, Aereo wins another round against a broadcaster

By Erin Geiger Smith

NEW YORK (Reuters) - Online TV service Aereo Inc has logged another court victory, with a federal judge refusing to temporarily shut down the IAC-backed start-up in a lawsuit brought by a Boston station owned by Hearst Television Inc.

U.S. District Judge Nathaniel Gorton in Boston said Thursday that WCVB-TV had failed to show it was likely to prevail on copyright claims against Aereo, as he ruled that Aereo could continue providing users with WCVB programming while the lawsuit goes ahead.

The Boston case is one of several around the country against Aereo. Fox Broadcasting Company and three local stations filed a lawsuit against Aereo on Monday in federal court in Utah, following Aereo's launch there on August 19.

Aereo, backed by Barry Diller's IAC/Interactive Corp, charges about $12 a month to watch live or recorded TV channels on computers or mobile devices. The TV industry sees the service as a threat to its ability to control subscription fees and generate advertising income, its two main sources of revenue.

In New York, Walt Disney Co's ABC, Comcast Corp's NBC, Fox and CBS Broadcasting are among those claiming that Aereo's service amounts to stealing their proprietary content. In April the U.S. 2nd Circuit Court of Appeals ruled that Aereo could continue to operate while the New York litigation moves forward.

The main question in all the suits is whether Aereo's technology provides users with a "public performance" of the plaintiffs' content. Copyright owners have the exclusive right to public performance of their works.

In Thursday's ruling, Gorton said he found Aereo's explanation that a user enjoys only private performances because the user views only the unique copy of a show generated on his behalf to be more plausible.

"We will immediately appeal the court's decision that allows Aereo to continue to engage in a commercial business that unlawfully profits by using WCVB's copyrighted broadcasts and shows," WCVB said in a statement.

Hearst had argued that it would suffer irreparable financial harm if Aereo was allowed to show WCVB content while the suit proceeds.

While Gorton agreed that Aereo could suffer in its ability to negotiate fees with subscribers, that harm would likely take years to develop, he said, and thus there is time to allow the litigation to play out.

Aereo's chief executive, Chet Kanojia, said in a statement that the ruling "makes clear that there is no reason that consumers should be limited to 1950s technology to access over-the-air broadcast television."

Aereo announced on Thursday that it will release its first Android app later this month.

The case is Hearst Stations Inc v. Aereo, U.S. District Court for the District of Massachusetts, No. 13-11649.

(Reporting by Erin Geiger Smith; Editing by Ted Botha and Leslie Adler)

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