Full opinion text
OPINION ALISON J. NATHAN, District Judge: Plaintiffs, a group of corporate entities engaged in the production, marketing, distribution, and transmission of broadcast television programs, move to enjoin Defendant AEREO, Inc., (“Aereo”) from engaging in those aspects of its service that allow its users to access “live” copyrighted content over the internet. Aereo claims that its conduct does not violate copyright law, relying on Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir.2008) (“Cablevision ”). But for Cablevision’s express holding regarding the meaning of the provision of the Copyright Act in issue here—the transmit, clause— Plaintiffs would likely prevail on their request for a preliminary injunction. However, in light of that decision, this Court concludes that it is bound to DENY Plaintiffs’ request. I. PROCEDURAL POSTURE On March 1, 2012, Plaintiffs filed two Complaints against Aereo alleging that its service unlawfully captures broadcast television signals in the New York City area, including at least some corresponding to television programs on which Plaintiffs hold the copyright (Pis. Ex. 83), and provides them over the internet to Aereo subscribers. {E.g., Hrg. Tr. at 132:7-141:13, 292:3-25; Pis. Br. at 4-5; Aereo Br. at 6). Although Plaintiffs’ Complaints assert multiple theories of liability, including infringement of the right of public performance, infringement of the right of reproduction, and contributory infringement (Complaint at ¶¶ 28-38, ABC, Inc. v. AEREO, Inc., No. 12-cv-01540, Docket Entry 1; Complaint at ¶¶ 142-58, WNET v. AEREO, Inc., No. 12-cv-01543, Docket Entry 1), the issue presently before the Court is quite limited. On March 13, 2012, Plaintiffs moved for a preliminary injunction, asserting that Aereo was directly liable for copyright infringement by publicly performing Plaintiffs’ copyrighted works. (3/13/12 Tr. at 7:23-8:5, 28:12-29:5). This motion was further limited in scope, challenging only the aspects of Aereo’s service that allow subscribers to view Plaintiffs’ copyrighted television programs contemporaneously with the over-the-air broadcast of these programs. (Hrg. Tr. 255:6-18, 267:14-23). After a roughly eleven week period of expedited discovery and briefing on the preliminary injunction motion, the Court held a two-day evidentiary hearing on May 30 and 31, 2012, to establish the record for deciding the motion. II. PRELIMINARY INJUNCTION STANDARD A preliminary injunction is an extraordinary remedy, granted only if the plaintiff establishes “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Even if a plaintiff has not demonstrated a likelihood of success on the merits, a preliminary injunction may still be granted if the plaintiff shows “a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiffs favor.” Metro. Taxicab Bd. of Trade v. City of New York, 615 F.3d 152,156 (2d Cir.2010). III. FACTS A. Aereo’s System The facts surrounding the operation of Aereo’s system are largely—though not entirely—undisputed. {See, e.g., Hrg. Tr. at 14:12-15, 23:6-15, 309:8-22). Even if not disputing facts, the parties are significantly at odds as to how Aereo’s service should be properly characterized. 1. The Audience Perspective Aereo’s system allows users to access free, over-the-air broadcast television through antennas and hard disks located at Aereo’s facilities. (See infra Section II.A.2). A user of Aereo’s system, after logging into their account on Aereo’s website, may navigate through a programming guide to select television programs that are currently being aired or that will be aired at a later time. (Hrg. Tr. at 133:2-134:24). If the user selects a program that is currently being aired, the user is given two options, “Watch” and “Record.” (Hrg. Tr. at 73:2-19; Kelly Decl. ¶¶ 38-39; Horowitz Rep. ¶ 64). Selecting “Watch” causes Aereo’s system to transmit a web page to the user in which the program starts after a short delay, allowing the user to view the program “live,” ie., roughly contemporaneous with its over-the-air broadcast. (Hrg. Tr. at 73:9-19; Kelly Decl. ¶¶ 39, 41). While viewing the program, the user may pause or rewind it, increasing the disparity between the time at which the program is initially broadcast and the time at which the user watches it. (Hrg. Tr. at 107:9-18, 111:20-112:12). If enough time has passed, a user may end up watching the program “live” after it has been fully broadcast. If the user presses the “Record” button after having begun watching a program using the “Watch” feature, the Aereo system retains the copy that the user has been watching, and the user may watch that program again later; if “Record” is not selected, the copy is not retained and cannot be viewed again later. (Hrg. Tr. at 88:15-90:9, 112:22-114:17; 121:15-25, 141:7-13; Kelly Decl. ¶¶ 42-43). Instead of selecting the “Watch” function at the outset, the user may press the “Record” button to schedule a recording of a program that will be broadcast at a later time or that is currently being aired. (Hrg. Tr. at 73:15-74:6, 134:11-24, 136:8-15). However, the “Record” feature can also be used, like the “Watch” feature, to view programs “live”: users can direct Aereo’s system to begin a recording and then immediately begin playback of the recording as it is being made. (Hrg. Tr. at 121:15-25,138:3-139:3,140:18-141:6). Thus, from the user’s perspective, Aereo’s system is similar in operation to that of a digital video recorder (“DVR”) (See, e.g., Hrg. Tr. 290:11-291:10, 298:16-23, 305:9-306:12), particularly a remotely located DVR, although Aereo users access their programming over the internet rather than through a cable connection. One further difference is that Aereo allows users to view the programming on their computers, laptops, or mobile devices, whereas to watch television on these devices using a standard DVR, the user might need to purchase an additional device, such as a Slingbox. (Hrg. Tr. at 132:16-20; 306:16-308:25; Lipowski Decl. ¶ 6). Slingbox allows users to stream video, including live broadcast television, over the internet to their mobile devices. (Hrg. Tr. at .306:23-307:4). Plaintiffs do not appear to contend in this litigation that services such as Slingbox are unlawful, instead claiming that they are “irrelevant” and that Aereo’s service is distinguishable because Slingbox consumers themselves set up the Slingbox in their homes. (Def. Ex. 41; Pis. Obj. to Aereo’s Proposed FOF ¶¶ 24, 26). 2. Behind the Scenes Behind the scenes, the process is more complicated. When a user clicks on the “Watch” button, the web browser sends a request to Aereo’s Application Server, which in turn sends a request and certain information about the user and the requested television program to Aereo’s Antenna Server. (Hrg. Tr. at 74:10-21; Kelly Decl. ¶¶ 44-45; see also Lipowski Decl. ¶ 35). The Antenna Server allocates resources to the user, including an antenna and transcoder, depending on whether the user is a “static” or “dynamic” user, a distinction based on the user’s subscription plan with Aereo. (Hrg. Tr. at 74:22-78:2; Kelly Decl. ¶¶ 45-46; Lipowski Decl. ¶¶ 32, 35). Static users have a set of previously selected antennas that have been assigned to them, whereas dynamic users—the vast majority of Aereo’s subscribers—are randomly assigned an antenna each time they use Aereo’s system. (Hrg. Tr. at 74:22-78:2; Kelly Decl. ¶¶ 47-49; see also Lipowski Decl. ¶¶ 32, 35). No two users are assigned a single antenna at the same time. (Hrg. Tr. at 104:20-105:1, 234:3-15). Thus, although any particular antenna can be used by only one user at a time, dynamic users “share” antennas in that a given antenna may be assigned to different users at different times. (Hrg. Tr. at 74:22-78:2, 104:20-106:24,234:3-15). Static users may similarly “share” antennas in the event that the antennas permanently assigned to them are unavailable, in which case the Aereo system will randomly assign them another unused antenna that may at some other time be allocated to another user. (Hrg. Tr. at 74:22-78:2, 104:20-106:24; Kelly Decl. ¶¶ 47-49). However, just as the antennas are not shared when they are in use, the data obtained by a particular antenna while allocated to a particular user is not “shared” with or accessible by any other Aereo user. (Hrg. Tr. at 104:20-106:24, 137:1-7, 139:12-16; Pozar Decl. ¶¶ 10-14, 19; Pozar Rep. at 6; Horowitz Rep. ¶ 59; Volakis Decl. ¶ 66). Once these resources are allocated, the Antenna Server sends a “tune” request that directs the user’s antenna to “tune into” a particular broadcast frequency band to obtain the desired program. (Hrg. Tr. at 103:4-21; Kelly Decl. ¶ 50; Volakis Decl. ¶ 58; Lipowski Decl. ¶¶ 33, 35-37; Horowitz Rep. ¶ 64). The Antenna Server also sends a request to the Streaming Server that creates a unique directory, assigned to the user, for storing the output data received by the antennas and processed by the transcoder. (Kelly Decl. ¶ 50). Once this directory is created, an electrical signal is sent from the antenna, processed and converted into data packets, and then sent to the transcoder, which encodes it in a form to be transmitted over the internet. (Hrg. Tr. at 82:13-85:5; Kelly Decl. ¶ 51; Volakis Decl. ¶¶ 59-63, 65; see also Lipowski Decl. ¶¶ 37, 41-45; Horowitz Rep. ¶ 62). The encoded data is sent to the Streaming Server, where it is saved on a hard disk to a file in the previously created directory and, once saved, is read from that file into a “RAM memory buffer” that sends the data to the user over the internet once a sufficient amount of data—at least six or seven seconds of programming—has accumulated. (Hrg. Tr. at 85:6-88:3, 106:25-107:8, 139:8-11, 248:18-22; Kelly Decl. ¶ 52; Lipowski Decl. ¶ 42; Horowitz Rep. ¶ 63). As additional data is received from the antenna, that data continues to be saved to the hard disk and then read into the RAM memory buffer to be transmitted to the user. (Hrg. Tr. at 85:6-88:3, 137:1-138:15; Kelly Decl. ¶ 52). Whereas the file saved to the hard disk retains all of the data received by the antenna at least until the user finishes watching the program, allowing the user to pause and rewind, the data in the RAM memory buffer contains only a small packet of data that is continuously replaced as data is sent to the user and new packets of data are fed into the buffer. (Hrg. Tr. at 87:11-88:3, 107:9-108:1, 108:23-110:15, 111:20-112:21,309:25-311:8). Essentially the same process occurs when the user engages the “Record” function of Aereo’s system. (Hrg. Tr. at 88:15-90:9, 294:1-300:5). The only substantial difference between the “Watch” and “Record” functions is that when a user engages the “Record” function, the file saved to the hard disk is tagged as permanent and automatically retained, whereas the file saved to the hard disk using the “Watch” function is not automatically retained unless the user clicks “Record” while the show is still open on the user’s web browser. (Hrg. Tr. at 88:15-90:9, 112:22-114:17,121:15-25,141:7-13). B. Aereo’s Antennas The only significant factual dispute concerns the operation of Aereo’s antennas. Aereo contends that each of its antennas functions separately to receive the incoming broadcast signals. Plaintiffs assert that Aereo’s antennas function collectively as a single antenna, aided by a shared metallic substructure. (Volakis Decl. ¶¶ 58, 66, 68). Each of Aereo’s antennas consists of a pair of metal loops roughly the size of a dime. (Volakis Decl. ¶¶ 2, 53-54). Eighty such antennas are packed on one end of a circuit board, with a metal rail that separates the area with the antenna elements from an area housing the electronic components used to operate the antennas and process the signal. (Hrg. Tr. at 80:11-82:12; Volakis Decl. ¶¶2-3, 53, 55; Horowitz Rep. ¶ 59; Pis. Ex. 80). Sixteen such boards are stored parallel to one another in a metal housing, like books a on shelf, with the portion of the circuit board containing the antennas sticking out of the housing. (Hrg. Tr. at 80:11-82.12; Volakis Decl. ¶¶ 2, 52-53; Pis. Ex. 80; Pis. Ex. 81). When the boards are placed in the housing, the metal rails fit close together and form a barrier between the antennas and the other electronic elements of Aereo’s system. (Hrg. Tr. at 80:11-82:12; Volakis Decl. ¶ 2). In support of their contention that single Aereo antennas cannot function on their own to receive usable television signals, Plaintiffs submit the declaration of Dr. John Volakis. According to Dr. Volakis, minimizing antenna size is challenging, because smaller antennas tend to have lower bandwidth and higher “impedance mismatch” than larger antennas, both of which impair their performance. (Volakis Decl. ¶¶ 33-34, 41, 43-44). Although these problems can be reduced or eliminated, doing so typically means the antenna will need to receive a more powerful broadcast signal to function. (Volakis Decl. ¶¶45-49). These principles lead Dr. Volakis to opine that Aereo’s antennas do not function independently. Instead, according to Dr. Volakis, the antennas are packed on the board so close together that the incoming signal “does not see the loops as separate elements, but rather as one continuous piece of metal,” the function of which is further aided by a common metal substructure formed by the circuit boards and the metal rails. (Volakis Decl. ¶¶71, 73-74; see also Pis. Ex. 86 at 200:21-201:11, 204:11-205:2; Pis. Ex. 87 at 36:7-15, 137:4-7, 137:24-138:3; Pis. Ex. 88 at 54:5-12). Dr. Volakis’s declaration sets forth a series of tests that he claims support this opinion. First, Dr. Volakis “aetivate[d] only a single [antenna] element, while leaving the loop elements immediately around it turned off,” and observed an electromagnetic field around not just the active loop, but also the inactive loops as well. (Volakis Decl. ¶ 79-80). Second, he made “metallization changes” on the circuit board, and found that none of the changes affected reception, contrary to what he would expect if the antenna were functioning independently. (Volakis Decl. ¶¶81, 83). Third, he obstructed roughly half of the antenna loops with radio absorbing material to suppress their presence and monitored reception of a single unobstructed loop element, and saw a substantial drop in signal received by that antenna as compared to when the other antenna loops were unobstructed. (Volakis Decl. ¶ 82). Aereo’s experts note two overarching flaws in the tests Dr. Volakis performed. First, Dr. Volakis oriented the antennas vertically and with the antenna board “broadside” to the signal transmitter, whereas Aereo orients the antennas horizontally, with the board oriented “edge-on” toward the transmitter, a significant change according to Dr. Horowitz. (Hrg. Tr. 323:17-325:1; Pozar Decl. ¶¶ 24-26; Horowitz Decl. ¶¶ 36-37; Pis. Ex. 80). Second, Aereo also notes the lack of a “control” in several of Dr. Volakis’s experiments, because Dr. Volakis did not perform these tests on a single, stand-alone antenna element. (Pozar Decl. ¶¶ 27-28; Horowitz Decl. ¶¶ 32, 46). Aereo’s experts also dispute the reliability of each of Dr. Volakis’s particular tests. As to the test in which Dr. Volakis activated only a single loop element (Volakis Decl. ¶¶ 79-80), Aereo notes that Dr. Volakis’s conclusions were drawn from a computer simulation which inaccurately positioned the antennas and did not properly model the antennas resistive elements, and that Dr. Volakis was unable to precisely reproduce or explain his results at his deposition. (Hrg. Tr. at 318:13-319:3, 322:13-323:14; Pozar Decl. ¶¶22, 30-32; Horowitz Decl. ¶¶ 29-31, 33). As to Dr. Volakis’s metallization experiments (Volakis Decl. ¶¶ 81, 83), Dr. Volakis could not identify precisely how he changed the metallization of the board and, according to Aereo’s experts, his results could be fairly interpreted to mean that the antennas at issue simply are not affected by nearby metallization and do, in fact, function independently. (Pozar Decl. ¶ 27; Horowitz Decl. ¶¶ 34, 40, 48^49; see also Hrg. Tr. at 239:9-12). Finally, Aereo’s experts opine that Dr. Volakis’s tests using radio absorbing material were flawed because the size of the absorbing material and its proximity to the measured antenna element would have disrupted the electromagnetic field around the antenna being measured. (Pozar Decl. ¶28; Horowitz Decl. ¶¶42^5, 47). Because Plaintiffs did not offer Dr. Volakis as a witness at the hearing or otherwise defend his results, these substantial criticisms are largely unrebutted. Moreover, Plaintiffs provide only a general description of the tests Dr. Volakis performed rather than explaining the details of this testing, which renders his experiments difficult to assess or credit in the first instance; combined with the flaws Aereo points out in these tests, the Court cannot accept their reliability at this stage of the proceedings. In contrast, Aereo presented significant evidence that each antenna functions independently. Dr. Pozar and Dr. Horowitz maintain that the construction of the antenna system requires the antennas to function independently, and Dr. Horowitz has observed numerous (if small) differences in recordings of the same program created by two different antennas. (Hrg. Tr. at 240:23-241:1, 300:16-304:14; Pozar Decl. ¶¶ 10-14,19; Pozar Rep. at 6; Horowitz Rep. ¶ 59; Def. Ex. 55 at 54:13-55:20, 71:20-72:3). Aereo’s chief technology officer, Joe Lipowski, attests that his experience with the antennas suggests that the proximity of one antenna to another does not improve and may actually degrade signal reception, a point on which Aereo’s experts concur. (Lipowski Decl. ¶¶ 62-63; Pozar Decl. ¶ 19; Horowitz Decl. ¶ 28; Def. Ex. 50 at 42:20-43:4, 78:13-79:11). Moreover, tests performed at the Aereo site demonstrate that the signal received by Aereo’s antennas is 1,000 times stronger than that needed for reliable reception, allowing Aereo to circumvent the difficulties associated with creating small antennas, discussed above. (Horowitz Decl. ¶ 26; Lipowski Decl. ¶ 61; Hrg. Tr. at 319:8-320:24). Such evidence goes to the heart of whether Aereo’s antennas are capable of functioning independently, as even Dr. Volakis testified at his deposition that a sufficiently strong signal would overcome the problems he identified relating to small antenna size. (Def. Ex. 49 at 205:3-23). Finally, Aereo’s expert Dr. Pozar also tested a single Aereo antenna which he observed to function with a signal level well above that required to generate the television picture. (Pozar Rep. at 10-12; see also Hrg. Tr. at 245:12-246:23). Dr. Volakis argues that such tests are not meaningful because the antenna was mounted on a circuit board with a metal plate that served as a substructure enhancing the performance of the antenna. (Volakis Decl. ¶¶ 85-87, 90; see also Pis. Ex. 88 at 223:15-22). However, Dr. Pozar testified at his deposition that he could “pretty much guarantee” that the metal plate was not going to have any effect on whether the single antenna loop could function given the strength of the signal received at Aereo’s facilities, a point on which Dr. Horowitz agrees. (Pis. Ex. 88 at 232:14-233:21; Def. Ex. 55 at 233:22-235:7, 270:13-271:9; see also Pis. Ex. 88 at 239:16-240:24; Horowitz Decl. ¶¶ 52-53). Based on the evidence at this stage of the proceedings, the Court finds that Aereo’s antennas function independently. That is to say, each antenna separately receives the incoming broadcast signal, rather than functioning collectively with the other antennas or with the assistance of the shared metal substructure. IV. LIKELIHOOD OF SUCCESS The first consideration in the preliminary injunction analysis is the probability of success on the merits. Salinger v. Colting, 607 F.3d 68, 80 (2d Cir.2010). “[T]o make out a prima facie case of copyright infringement, a party must establish ownership of a valid copyright and that the defendant violated an exclusive right conferred by the ownership.” Blue Moon Media Group, Inc. v. Field, No. 08-cv-01000, 2011 WL 4056068, at *15, 2011 U.S. Dist. LEXIS 108066, at *46-47 (E.D.N.Y. Apr. 11, 2011) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 360, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)); see also Arista Records LLC v. Doe, 604 F.3d 110, 117 (2d Cir.2010). Plaintiffs may make a prima facie showing of a valid copyright by submitting certificates of registration of the copyrights at issue, see 17 U.S.C. § 410(c), and there appears to be no dispute for purposes of this motion that Plaintiffs’ works are copyrighted or that Aereo’s users will access those works using Aereo’s service. (Pis. Ex. 83). A. Cablevision At issue in this case is the applicability of the Second Circuit’s decision in Cablevision, which held, inter alia, that Cablevision’s Remote Storage DVR (“RS-DVR”) system did not infringe the plaintiffs’ public performance right under the Copyright Act. Cablevision, 536 F.3d at 139^10. In particular, Cablevision construed the “transmit clause” in 17 U.S.C. § 101, which provides in relevant part that [t]o perform or display a work “publicly” means ... to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 U.S.C. § 101. The same provision is at issue here. Aereo argues that as in Cablevision it effectively rents to its users remote equipment comparable to what these users could install at home, and that its activities are materially identical to those in Cablevision such that the Second Circuit’s analysis and holding in that case are directly applicable, precluding any public-performance liability. Plaintiffs contend that there are factual distinctions between Cablevision and the present case that render that decision inapplicable and require the Court to find that Aereo engages in a public performance under the transmit clause. Because this case turns on determining if the analysis in Cablevision is controlling or, as Plaintiffs maintain, there are factual distinctions sufficient to escape Cablevision’s holding, the Court must undertake a detailed review of that case, including the mechanics of Cablevision’s RS-DVR system. 1. The Mechanics of the Cablevision RS-DVR System The RS-DVR system in Cablevision was designed to allow customers who did not have a stand-alone DVR in their homes to record cable programming on central hard drives housed and maintained by Cablevision at a remote location. See Cablevision, 536 F.3d at 124. Customers could receive playback of those programs using a remote control on their home television sets, allowing those consumers to achieve DVR functionality without actually possessing an in-home set-top DVR See id. at 124-25. To provide this service, Cablevision took the single stream of data that it received containing the programming of various television channels and split it into two separate streams. Id. at 124. The first stream was treated as standard cable programming and routed immediately to customers. See id. The second stream of data was used for Cablevision’s unlicensed RS-DVR service. See id. at 124-25. The second stream of data was first sent to a primary ingest buffer, which queried whether any consumer wanted to record any of the programming contained in the data stream. Id. at 124-25. If so, the data for that program moved to a secondary buffer, and then onto a portion of the hard disk allocated to that consumer where a copy was created and stored for playback by the consumer. See id. A unique “playback copy” of the television program was thus stored on the hard drive for each individual subscriber, to be sent to the consumer when they requested to watch the program. See id. at 125, 130, 135, 138-39. As a result, Cablevision’s RS-DVR system allowed numerous consumers to watch the same television program with DVR functionality, although each consumer did so through playback of a unique copy that he or she created and that was accessible only to that consumer. 2. The District Court’s Decision Considering these facts, then-District Court Judge Chin concluded that, notwithstanding the specifics of how Cablevision’s system operated, Cablevision was engaged in a public performance of the plaintiffs’ copyrighted works. Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp., 478 F.Supp.2d 607, 624 (S.D.N.Y.2007). In doing so, the district court rejected Cablevision’s argument that any “performance is fundamentally private ... [because] each streaming emanates from a distinct copy of a program uniquely associated with one customer’s set-top box and intended for that customer’s exclusive viewing in his or her home.” Id. at 622. Instead, the district court focused on the fact that each of Cablevision’s RS-DVR subscribers were being transmitted the same underlying program, and found that this resulted in a public performance. See id. at 622-23. In reaching this conclusion, the district court found two out-of-circuit cases particularly instructive, On Command Video Corp. v. Columbia Pictures Indus., 777 F.Supp. 787 (N.D.Cal.1991) and Columbia Pictures Indus. v. Redd Horne, 749 F.2d 154 (3d Cir.1984). Both cases involved infringers who delivered copyrighted programming to multiple people, albeit at different times and in different places, and in both cases the court found that the infringers engaged in public performances under the transmit clause. In Columbia Pictures, 749 F.2d at 156-57, the defendants operated video rental stores and set up private booths in which customers could watch copyrighted videotapes played by a VCR at the front of the store. Similarly, in On Command, 777 F.Supp. at 788-89, the infringing plaintiff developed a system through which a hotel could use a bank of VCRs to play videotapes to rooms in the hotel. The district court explained that, as in these cases, Cablevision’s service fell within the scope of the transmit clause and that it made no difference that the subscribers may have viewed the programs at different times and in different places. See Twentieth Century Fox Film Corp., 478 F.Supp.2d at 623-24. Thus, the district court effectively viewed the transmit clause broadly, with the “same time or ... different times” and “same place or ... different places” language controlling the outcome of the ease because the relevant transmission was that of the underlying program, and not each playback copy to each particular user. 3. The Second Circuit’s Decision The Second Circuit approached the problem posed by Cablevision from a substantially different starting point, one that led it to reverse the district court. See Cablevision, 536 F.3d at 140. In particular, the Court of Appeals began its analysis with two crucial premises in mind. First, the Court of Appeals explained that under the “transmit clause,” “a transmission of a performance is itself a performance” for infringement purposes. Cablevision, 536 F.3d at 134-35, 139. This meant that, in determining whether there has been a public performance, courts are to look to the transmission being made as the performance at issue, rather than simply to whether the public receives the underlying work. See id. at 134-36 (“[W]e believe that when Congress speaks of transmitting a performance to the public, it refers to the performance created by the act of transmission.”); see also United States v. Am. Soc’y of Composers, 627 F.3d 64, 73-74 (2d Cir.2010) (“ ‘[TJransmittal of a work’ is distinct from a transmittal of ‘a performance’—the former being a transmittal of the underlying work and the latter being a transmittal that is itself a performance of the underlying work.”). Second, the Court of Appeals found that the transmit clause directs courts to “examine who precisely is ‘capable of receiving’ a particular transmission of a performance” to determine if a performance is public. Cablevision, 536 F.3d at 135. From this perspective, the Second Circuit’s view of the transmit clause was substantially narrower than the district court’s. Because the Second Circuit considered the relevant performance to be the discrete transmission of each user’s unique playback copy of the television program to that user, the potential audience “capable of receiving” that performance was limited to that user, and each such performance was private, not public. See id. at 125, 135, 139. Specifically, the Second Circuit explained that because “each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, ... such transmissions are not performances ‘to the public.’ ” Id. at 139. As such, the Second Circuit held that “the use of a unique copy may limit the potential audience of a transmission and is therefore relevant to whether that transmission is made ‘to the public.’ ” Id. at 138. Importantly, the Second Circuit viewed the transmissions in that case as made from each unique playback copy, even though those playback copies could arguably have been viewed as merely part of a “device or process” through which a large-scale transmission to the public was accomplished. See 17 U.S.C. § 101; Cablevision, 536 F.3d at 124-25, 137. This reading of the transmit clause also led the Second Circuit to expressly reject the district court’s reasoning, explaining that the transmit clause “speaks of people capable of receiving a particular ‘transmission’ or ‘performance,’ and not of the potential audience of a particular ‘work.’” Cablevision, 536 F.3d at 135. Likewise, it concluded that Redd Horne and On Command were inapposite, in large part because each of those cases involved the retransmission of a copyrighted work from a single “master copy,” rather than unique copies created for each viewer, as in Cablevision. See id. at 138-39. Similar reasoning led the Second Circuit to reject the plaintiffs’ argument on appeal that Cablevision was engaged in a public performance because it transmitted to the public the “same performance” of any given work—the performance of that work that “occurs when the programming service supplying Cablevision’s content transmits that content to Cablevision and the service’s other licensees.” Id. at 136. In other words, the plaintiffs argued that because the upstream content providers transmitted the copyrighted work to Cablevision and other cable companies, which Cablevision retransmitted to its subscribers, the Second Circuit should view the initial transmission from the content providers as the relevant performance (rather than the subsequent transmission of each playback copy to each user) and treat that performance as made “to the public.” See id. The Second Circuit disagreed, explaining that “HBO transmits its own performance of a work when it transmits to Cablevision, and Cablevision transmits its own performance of the same work when it retransmits the feed from HBO,” and it was therefore inappropriate to look back to the initial transmission made by the plaintiffs as the relevant performance. Id. Importantly, the Second Circuit held that courts should look “downstream, rather than upstream or laterally, to determine whether any link in a chain of transmissions made by a party constitutes a public performance.” Id. at 137. B. Lawfulness of Aereo’s System Aereo characterizes its system as merely allowing users to rent a remotely located antenna, DVR, and Slingbox-equivalent device, in order to access content they could receive for free and in the same manner merely by installing the same equipment at home. Housing this argument more specifically in the terms defined by Cablevision, Aereo contends that, like the RS-DVR system in Cablevision, its system creates unique, user-requested copies that are transmitted only to the particular user that created them and, therefore, its performances are nonpublic. Moreover, Aereo submits that because each of its antennas function independently, even if the Court adopts Plaintiffs’ view that these copies are not legally significant, an injunction still should not issue because each user is receiving a distinct transmission generated by their own individually rented antenna. Plaintiffs disagree, arguing that Cablevision does not control and the Court should view Aereo’s system as a technological gimmick—a “device or process”—through which Aereo passes along Plaintiffs’ copyrighted content to the public. Specifically, Plaintiffs attempt to distinguish Cablevision on its facts, arguing that because Aereo’s subscribers are watching these programs as they are still being broadcast, they are not using the copies Aereo creates for “time-shifting” and these copies therefore do not “break[ ] the chain of the [over-the-air] transmission” received by Aereo. (Pis. Br. at 22-23; Pis. Reply at 14). Thus, Plaintiffs contend, Aereo is engaged in a public performance that “emanates from the original broadcast signal” (Pis. Reply' at 10), much like a “community antenna” which simply passes along a broadcast signal to the public. In other words, according to Plaintiffs, Aereo’s copies should be viewed as merely facilitating the transmission of a single master copy— in this case, the broadcast signal—rather than as copies from which a distinct transmission is made. Having identified this hook on which to hang their legal position, Plaintiffs advocate that the Court is bound only by Cablevision’s specific holding as applied to its precise facts and is free to depart from the transmit clause analysis of that case to find that Aereo engages in a public performance. (See, e.g., Hrg. Tr. at 400:5-402:19 (citing Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876, 899 (2d Cir.2011) (explaining that “appellate judges cannot make law except insofar as they reach a conclusion based on the specific facts and circumstances presented to the court in a particular appeal”))). Despite this creative attempt to escape from the express holding of Cablevision, for the reasons discussed below this Court finds itself constrained to reject the approach Plaintiffs urge. Contrary to Plaintiffs’ arguments, the copies Aereo’s system creates are not materially distinguishable from those in Cablevision, which found that the transmission was made from those copies rather than from the incoming signal. Moreover, Plaintiffs’ attempt to distinguish Cablevision based on time-shifting fails when confronted with the reasoning of that case, particularly considering that the Second Circuit’s analysis was directly focused on the significance of Cablevision’s copies but did not say one word to suggest that time-shifting played any part in its holding. 1. Cablevision Suggests that the Copies Saved to Aereo’s Hard Disks Do Not Merely Facilitate a Broader Transmission In assessing the parties’ arguments, this Court first looks to Cablevision’s basis for finding that the copies created by Cablevision’s RS-DVR system thwarted the plaintiffs’ public performance claim, as this holding is necessarily premised on the conclusion that the copies in that case were not mere facilitating copies. See Cablevision, 536 F.3d at 139 (“[E]ach RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber”). In doing so, this Court finds that on the key points on which Cablevision actually relied, see id., Aereo’s system is materially identical to that in Cablevision, suggesting that the copies Aereo creates are as significant as those created in Cablevision. First, Aereo’s system creates a unique copy of each television program for each subscriber who requests to watch that program, saved to a unique directory on Aereo’s hard disks assigned to that user. See id. at 124 (“If a customer has requested a particular program, the data for that program move from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer.”). Second, each transmission that Aereo’s system ultimately makes to a subscriber is from that unique copy. See id. at 137 (“[T]he RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber”). Third, the transmission of the unique copy is made solely to the subscriber who requested it; no other subscriber is capable of accessing that copy and no transmissions are made from that copy except to the subscriber who requested it. See id. (“[T]he universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission.”). The overall factual similarity of Aereo’s service to Cablevision on these points suggests that Aereo’s service falls within the core of what Cablevision held lawful. Another point of similarity between this case and Cablevision is found in the undercurrent to the Second Circuit’s reasoning suggesting that the Cablevision system merely allowed subscribers to enjoy a service that could also be accomplished using any standard DVR or VCR. See, e.g., id. at 125 (“To the customer, however, the processes of recording and playback on the RS-DVR are similar to that of a standard set-top DVR.”); see also id. at 131 (noting that it “d[id] not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability” for infringement of the reproduction right). As in Cablevision, the functionality of Aereo’s system from the user’s perspective substantially mirrors that available using devices such as a DVR or Slingbox, which allow users to access free, over-the-air broadcast television on mobile internet devices of their choosing. (See supra Section II.A.1). To the extent that the Second Circuit’s holding in Cablevision was premised on an inability to distinguish Cablevision’s system from otherwise lawful activities, Aereo’s system deserves the same consideration. In addition, beyond the substantial factual similarities of Aereo’s copies to those in Cablevision, the analysis the Second Circuit undertook in finding that the performance to the end user was made from those copies rather than from, for example, the incoming stream of data, is equally applicable here. For one thing, Cablevision held that a public performance does not occur merely because a number of people are transmitted the same television program. See id. at 135-36. The Second Circuit was similarly unwilling to accept the plaintiffs’ arguments on appeal that, notwithstanding its creation of unique copies, Cablevision was actually transmitting to its users the performance of that work that “occurs when the programming service supplying Cablevision’s content transmits that content to Cablevision and the service’s other licensees.” Id. at 136. Plaintiffs’ argument that Aereo’s transmissions actually “emanate[ ] from the original broadcast signal” rather than from the unique copies Aereo’s system creates is just another variant of these arguments, rejected by Cablevision, that the Court should look back (or “upstream”) to the point at which Aereo’s antennas obtain the broadcast content to conclude that Aereo engages in a public performance in retransmitting this content. In fact, the Second Circuit expressly refused to look back to the received signal to conclude that Cablevision was engaged in a public performance, finding a dividing line between the transmissions made by the content providers and the transmissions made by Cablevision. See id. (“HBO transmits its own performance of a work when it transmits to Cablevision, and Cablevision transmits its own performance of the same work when it retransmits the feed from HBO.”). Indeed, in light of this Court’s factual determination that each antenna functions independently, in at least one respect the Aereo system is a stronger case than Cablevision for attaching significance to such copies because, unlike Cablevision in which multiple copies were all created from a single stream of data, see id. at 124, each copy made by Aereo’s system is created from a separate stream of data. See id. at 137 (refusing to accept the plaintiffs’ argument that Cablevision publicly performs a work when it splits and retransmits the incoming programming stream); see also Am. Soc’y of Composers, 627 F.3d at 75 (applying the “same distinction” as drawn in Cablevision regarding the creation of unique copies to conclude that a performance made from those copies is not public). Taken in conjunction with the substantial factual parallels between Aereo’s service and that in Cablevision, that Plaintiffs raise arguments profoundly similar to those already considered and rejected by the Second Circuit demonstrates, in part, why Cablevision controls this case. 2. Plaintiffs Cannot Persuasively Distinguish Cablevision Based on Time-Shifting In the face of these controlling similarities, Plaintiffs try to devise factual distinctions to circumvent Cablevision’s holding. Primarily, Plaintiffs argue that the copies in this ease are unlike those in Cablevision because Cablevision addressed only copies used for time-shifting—recording programs to view them at a later time— whereas Aereo’s system allows users to view television programs close in time to their initial broadcast. Plaintiffs further contend that in order to be time-shifted, there can be no overlap between the over-the-air broadcast of the program and consumer playback of a recorded copy of that program—that any time-shifting must be “complete” to turn a facilitating copy into a transmission copy. (See, e.g., Hrg. Tr. at 386:19-387:8, 416:24-420:15). The Court cannot accept this reading of Cablevision, which applies controlling significance to facts on which the Second Circuit did not rely, requests that this Court read volumes into Cablevision’s silence, and has no foundation in the articulated reasoning on which the Second Circuit’s decision was actually grounded. a. Plaintiffs apply controlling significance to facts on which Cablevision does not rely. Beginning with the first point, that Plaintiffs attempt to apply controlling significance to facts on which Cablevision did not rely, the Second Circuit’s holding regarding the meaning of the transmit clause required a focus on who is “capable of receiving” a given performance—i.e., the potential audience—in determining whether that performance was made “to the public.” See Cablevision, at 134-35, 139. The facts on which the Second Circuit relied in holding that the potential audience of the transmissions in Cablevision was limited are the same as those present here, namely the use of unique copies, accessible only to the users who requested them, and transmitted only to those users. See id. at 139. Notwithstanding the scattered background-section references in Cablevision to programs that were “previously recorded” that Plaintiffs cite (Pis. Br. at 17-18; Pis. Reply at 3 n.l, 11,13; Hrg. Tr. at 420:7-15, 425:5-24), time-shifting is simply not the basis of the Second Circuit’s opinion. Far from it: the Second Circuit never even mentioned time-shifting, whether complete or partial, as a reason to conclude the copies Cablevision created were significant or that the performances at issue were non-public. See generally id. Thus, even accepting that a distinction based on time-shifting exists in this case, nothing in the Second Circuit’s analysis indicates that this distinction is material, and this Court remains obligated to apply Circuit precedent with fidelity to its underlying reasoning. See, e.g., Rutherford v. Katonah-Lewisboro Sch. Dist., 670 F.Supp.2d 230, 247 (S.D.N.Y.2009); Shipkevich v. Staten Island Univ. Hosp., No. 08-CV-01008, 2009 WL 1706590, at *1-2, 2009 U.S. Dist. LEXIS 51011, at *5 (E.D.N.Y. June 16, 2009). Indeed, even in Theflyonthewall.com, Inc., 650 F.3d at 899, 902, on which Plaintiffs heavily rely for the proposition that “appellate judges cannot make law except insofar as they reach a conclusion based on the specific facts and circumstances presented to the court in a particular appeal,” the Second Circuit still applied the reasoning of controlling precedent to reach its result. b. Cablevision’s silence on time-shifting refutes Plaintiffs’ argument Turning to the second basic flaw in Plaintiffs’ argument, Plaintiffs admit that nowhere in Cablevision did the Second Circuit articulate a requirement that the copies be used for time-shifting in order to “break the chain” of transmission—the distinction on which they now found their case. (Hrg. Tr. at 402:23-412:7). Specifically, Plaintiffs argue that the lawfulness of playback of programs contemporaneous with the initial broadcast of those programs was not before the Second Circuit because Cablevision was licensed to make live transmissions of this content. (Hrg. Tr. at 397:5-398:5, 398:19-400:4). See Cablevision, 536 F.3d at 124 (“Generally, this stream [of data comprising the content of various television programs] is processed and transmitted to Cablevision’s customers in real time.... The first [data stream used in the RS-DYR service] is routed immediately to customers as before.”). As such, Plaintiffs contend that the Second Circuit was only called upon to rule on the lawfulness of a system allowing users to access time-shifted programming and that this Court should disregard the Second Circuit’s complete silence on the significance of time-shifting to its analysis. Plaintiffs’ position that the Second Circuit’s decision in Cablevision turned on its unstated reliance on the importance of time-shifting as “breaking the chain of transmission” is unpersuasive. The Second Circuit’s analysis of the public performance claim was entirely directed toward explaining why the copies created by the system in Cablevision were significant and resulted in performances to a limited, non-public audience. See generally id. Plaintiffs’ view of Cablevision requires the dubious conclusion that despite the Second Circuit’s extensive discussion of the importance of these unique copies, the Second Circuit relied on the time-shifted nature of these copies as case-dispositive but left this crucial consideration in the background for subsequent courts to puzzle out on their own. Moreover, Plaintiffs’ contention that the parties in Cablevision extensively relied on time-shifting before the district court and Second Circuit (Pis. Prop. COL ¶¶ 40-43, 67) completely undercuts their claim that the Second Circuit did not discuss time-shifting because that issue was not squarely before them. (Hrg. Tr. at 397:5-398:5, 398:19-400:4). By Plaintiffs’ own admission, the purported significance of time-shifting was “actually presented to the Second Circuit in Cablevision ” (Pis. Prop. COL ¶ 43) through Cablevision’s briefing, yet the Second Circuit gave no indication it considered these facts important, let alone controlling. Plaintiffs’ argument relying on time-shifting is, therefore, implausible. c. Plaintiffs’ arguments are contrary to the reasoning of Cablevision Third, and perhaps most importantly, Plaintiffs’ arguments are simply not consistent with the reasoning of Cablevision. For example, although they gesture toward housing their position within the reasoning of Cablevision by suggesting that complete time-shifting limits the potential audience of a program, (Pis. Reply at 14; Pis. Proposed COL at ¶ 63); see id. at 138 (explaining that “the use of a unique copy may limit the potential audience of a transmission and is therefore relevant to whether that transmission is made ‘to the public.’” (emphasis added)), the logic of this argument is opaque. Whether a user watches a program through Aereo’s service as it is being broadcast or after the initial broadcast ends does not change that the transmission is made from a unique copy, previously created by that user, accessible and transmitted only to that user, the factors Cablevision identified as limiting the potential audience. See id. at 134-39. To the extent Plaintiffs mean to suggest that time-shifting limits the potential audience because it “breaks the chain of transmission,” this is merely a restatement of the conclusion that Plaintiffs hope the Court will draw, not an independent argument that explains why only a time-shifted copy limits the potential audience of a transmission to render the resulting performance nonpublic. In fact, nothing in Cablevision suggests that whether a performance is public turns on the times at which individuals receive the transmission. Focusing on the text of the Copyright Act, Cablevision explained that “it is of no moment that the potential recipients of the transmission ... may receive the transmission at different times.” Id. at 134; see also 17 U.S.C. § 101 (explaining that a transmission may be “to the public ... whether the members of the public capable of receiving the performance ... receive it ... at the same time or at different times.”). Rather, as Cablevision instructed, it is not the timing of the receipt of the transmission that courts should look to in determining whether the transmission is to the public, but the factors set forth in Cablevision. See Cablevision, 536 F.3d at 134 (“The implication from this same language, however, is that it is relevant, in determining whether a transmission is made to the public, to discern who is ‘capable of receiving’ the performance being transmitted.”). Furthermore, in rejecting the plaintiffs’ arguments on appeal, the Second Circuit explained in Cablevision that certain of these arguments would lead to “odd results,” such as imposing public performance liability on “a hapless customer who records a program in his den and later transmits the recording to a television in his bedroom.” Id. at 136. Plaintiffs’ position raises a similar concern that “a hapless customer who records a program in his den” and then uses a Slingbox to “transmit! ] the recording to a [mobile device] in his bedroom would be liable for publicly performing the work.” Id. Such a consumer, watching a program “live” on his or her mobile device would not, according to Plaintiffs’ logic, “break the chain of transmission” from the initial, over-the-air broadcast. As such, that consumer would merely be passing along a transmission that “emanates from the broadcast signal” (Pis. Reply at 10) distributed to the public generally, and thus would have engaged in a public performance even though the transmission was made from a unique copy stored on his or her DVR, solely to himself. Finding Cablevision cuts against them, Plaintiffs also try to locate their claimed distinction of Cablevision in other precedent, particularly the holding in NFL v. Primetime 24 Joint Venture that “a public performance or display includes each step in the process by which a protected work wends its way to its audience.” NFL v. Primetime 24 Joint Venture, 211 F.3d 10, 13 (2d Cir.2000) (quotation marks omitted). In that case, the Second Circuit addressed whether PrimeTime’s satellite transmissions were an infringing “public performance” under the transmit clause, even though the transmissions from the satellite were received in Canada, where the Copyright Act does not apply. See id. at 11-12. The Second Circuit found that Prime-Time’s uplink transmission of the signals, which occurred in the United States, was a step in the process of transmission and, therefore, PrimeTime was making a public performance in the United States subject to the Copyright Act. See id. at 13. Moreover, in American Society of Composers the Second Circuit explained its conclusion in NFL, noting that the fact that “the immediately sequential downlink from the satellite to Canadian PrimeTime subscribers was a public performance of the games” was of “controlling significance” to NFL’s conclusion that PrimeTime’s satellite uplink was part of this public performance. Am. Soc’y of Composers, 627 F.3d at 74 (emphasis added). Plaintiffs hope to persuade the Court that this holding in NFL should lead it to conclude that Aereo creates mere facilitating copies. Again, however, this argument simply runs hard against the reasoning and holding of Cablevision. Both Cablevision and Composers expressly distinguished NFL based on the creation, in those cases, of unique copies from which the transmissions were made, explaining that such copies meant that the ultimate performance was not “to the public.” See id. at 75 (“Just as in Cartoon Network, the Internet Companies transmit a copy of the work to the user, who then plays his unique copy of the song whenever he wants to hear it; because the performance is made by a unique reproduction of the song that was sold to the user, the ultimate performance of the song is not ‘to the public.’ ”); Cablevision, 536 F.3d at 137. Moreover, Plaintiffs’ attempts to analogize this case to NFL cannot overcome the substantial other points that demonstrate that Cablevision controls this ease, including Cablevision’s rejection of the arguments that it should look back to the receipt of the initial broadcast signal as the relevant performance. (See supra at Section IY.B.l); Cablevision, 536 F.3d at 136-37 (discussing NFL’s holding that courts should consider each step in which a public performance wends its way to its audience and explaining that NFL only directs courts to look “downstream” rather than “upstream or laterally” and rejecting the argument that splitting the single data stream in Cablevision resulted in a public performance). Plaintiffs further attempt to rely on cases in which courts have concluded or the parties have conceded that internet streaming results in a public performance. See, e.g., Am. Soc’y of Composers, 627 F.3d at 74 (explaining that “[a] stream is an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory” and that “all parties agree [such stream transmissions] constitute public performances”); WPIX, Inc. v. ivi, Inc., 765 F.Supp.2d 594, 601 (S.D.N.Y.2011) (undisputed that internet streaming at issue was a public performance); Warner Bros. Entm’t, Inc. v. WTV Sys., 824 F.Supp.2d 1003, 1008-11 (C.D.Cal.2011) (internet streaming of DVDs was a public performance). But see Capitol Records, Inc. v. MP3tunes, LLC, 821 F.Supp.2d 627, 649-50 (S.D.N.Y.2011) (finding that a data compression algorithm that eliminated redundant digital data from stored copies did not result in the creation of a “master copy” storage system and, under Cablevision, there was no public performance liability). Such cases, however, have generally not considered the impact of the creation of unique copies—the focus of Cablevision’s analysis—on whether internet streaming transmissions involve a public performance and thus did not address the question currently before the Court. See, e.g., Am. Soc’y of Composers, 627 F.3d at 74-75 (using streaming transmissions to distinguish downloading unique copies of songs); ivi, Inc., 765 F.Supp.2d at 601; Warmer Bros. Entm’t Inc., 824 F.Supp.2d at 1008-11 (C.D.Cal.2011) (streaming was accomplished from master copies of “rented” DVDs). Even though these cases did not address the question presented by Cablevision, Plaintiffs suggest that they are persuasive because they present facts similar to this case, arguing that the copies Aereo creates are equivalent to the buffer copies generally used in internet streaming. (See Hrg. Tr. at 92:5-96:7). In particular, Plaintiffs emphasize that the copies Aereo creates in the “Watch” mode—in contrast to those created using “Record”—are retained only until the user finishes watching the program. (See, e.g., Pis. Reply at 3-4, 10 & n.6, 11-15; see generally Pis. Br. (describing Aereo’s copies as “buffer” copies)). The difference between the “Watch” and “Record” services has always been tenuous, hinging as it does on this sole point of distinction, and Plaintiffs cannot persuasively analogize the copies stored on Aereo’s hard disk to “buffer” copies. Even the copies created by the “Watch” mode are not “buffer” copies, as they are stored for the duration of the user’s viewing experience, and are not purely fleeting repositories of data as it is immediately passed to the user. See, e.g., Cablevision, 536 F.3d at 124-25, 127-30 (describing the fleeting nature of these buffer copies). This difference is established by, among other things, the testimony of Dr. Horowitz—which Plaintiffs repeatedly misconstrue (see, e.g., Pis. Prop. FOF at 13 n.4; Pis. Obj. to Aereo’s Prop. FOF at 3-4, 8, 25-26). In particular, Dr. Horowitz contrasted the “firehose” nature of buffer copies, which act purely to pass through data, with the copies saved to Aereo’s hard disk, which are “nonvolatile storage” as typically used to make a recorded copy on a standard DVR. (Hrg. Tr. at 310:8-311:6; see also Hrg. Tr. at 106:25-107:24, 111:12-114:17, 298:14-23; Lipowski Decl. ¶¶51-55). Moreover, by clarifying that their present challenge in this motion encompasses all retransmissions of their content while the initial broadcast is occurring (Compare Pis. Br. at 3, 5 n.l with Hrg. Tr. 255:6-18, 267:14-23), including through the “Record” mode in which Plaintiffs’ own expert conceded the copies made are “permanent” (Hrg. Tr. at 90:7-9, 113:6-19), even the tenuous point of distinction between the “Watch” and “Record” function vanishes, and Aereo’s copies cannot be viewed as purely “temporary.” Finally, Plaintiffs try to side-step Cablevision and refocus this Court on the text of the transmit clause which provides that “[t]o ‘perform’ a work ‘publicly’ means ‘to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process.” (Pis. Br. at 9-10 (quoting 17 U.S.C. § 101)). In doing so, Plaintiffs claim that Aereo is engaged in a “quintessential public performance” because it uses a device or process to communicate performances of Plaintiffs’ copyrighted work to members of the public. (Pis. Br. at 9-10). But Cablevision makes this argument a non-starter. If Plaintiffs’ view of the transmit clause were correct, the Second Circuit in Cablevision would have affirmed the result reached by the district court, as Cablevision likewise used a “device or process” to “transmit” the copyrighted works to multiple subscribers. Indeed, Cablevision expressly rejected the argument, advanced again here, that the mere fact that a content provider is making a given work available to all of its subscribers results in a public performance. See id. at 135-36. Thus, although the text of the transmit clause suggests that Congress intended that clause’s coverage to sweep broadly, absent a persuasive distinction that demonstrates Aereo’s copies—unlike those in Cablevision—are merely such a “device or process,” Plaintiffs gain no ground through reliance on this language. 3. Plaintiffs Reliance on “Complete” Time-Shifting Further Undermines Their Arguments Plaintiffs’ proposed requirement of “complete” time-shifting is even less justified than their contention that Cablevision sub silentio relied on time-shifting in reaching its holding. Plaintiffs’ sole legal rationale for this argument is an attempt to locate it in the Supreme Court’s decision in Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984), by claiming that Sony defined what it means to time-shift a television program, and that the technology at issue in Sony only allowed “complete” time-shifting. (Hrg.