The key litigated issue in Fox Television Stations, Inc. v. Aereokiller, LLC was whether the US District Court for the Central District of California would grant a preliminary injunction against companies that transmitted the plaintiff television producers' and broadcasters' content to users through internet and mobile device streaming. The resolution of this issue rested on whether these transmissions infringed the plaintiffs' exclusive right of public performance under section 106(4) of the Copyright Act, 17 U.S.C. § 106(4). Specifically, the legal issue presented was whether, as urged by the defendants, the district court should adopt the US District Court for the Southern District of New York's reasoning in American Broadcasting Cos. v. Aereo, Inc., finding similar technology to be non-infringing.

The plaintiffs, including Fox Television Stations, Inc. and NBCUniversal Media LLC, produce and license the distribution of copyrighted television programs. The defendants distribute the plaintiffs' copyrighted works through internet and mobile streaming. As in American Broadcasting Cos. v. Aereo, Inc., the defendants' system allowed viewers to use an individual mini digital antenna to watch and DVR to record a free television broadcast. The plaintiffs moved for a preliminary injunction against the defendants, alleging that the defendants' transmissions were public performances that infringed their exclusive right of public performance.

In its December 27, 2012 preliminary injunction order, the US District Court for the Central District of California granted the plaintiffs' request for a preliminary injunction against the defendants, prohibiting them from retransmitting, streaming or otherwise publicly performing or displaying the plaintiffs' over-the-air television content over the internet or through mobile devices.

The defendants had urged the district court to adopt the Southern District of New York's reasoning in American Broadcasting Cos. v. Aereo, Inc., arguing that their technology was practically and legally indistinguishable from the service the Southern District of New York found to be non-infringing in that case. In Aereo, the Southern District of New York applied the Second Circuit's holding in Cablevision to find that a service that allowed each user to watch programs received by the user's unique antenna did not infringe the copyright holder's public performance rights because the broadcasts captured by the assigned antenna were never shared with any other user.

The reasoning supporting the US District Court for the Central District of California's December 27, 2012 order is explained in its December 20, 2012 Tentative Ruling. This Tentative Ruling explicitly rejected Second Circuit law as stated in Cablevision and Aereo, reasoning that the Ninth Circuit's precedents required the court to repudiate the Second Circuit's position that the one-to-one transmissions made by the defendants do not constitute infringing public performances.

The district court further explained that the Second Circuit's reading of the Transmit Clause of the Copyright Act, 17 U.S.C. § 106(4), is not the only possible reading of that statute. The court pointed out that the definition section of the Copyright Act (17 U.S.C. § 101):

The court further explained that, because the Copyright Act is concerned with the public performance of copyrighted works, regardless of which copy of the works their transmission is made from, Cablevision's focus on the accused infringer's one-to-one transmission of a unique copy of a work to each individual viewer is irrelevant for purposes of establishing its liability for infringing the copyright owner's exclusive right of public performance.

The US District Court for the Central District of California's rejection of Aereo and Cablevision indicates that a rift is likely forming between the Second and Ninth Circuits regarding the retransmission of over-the-air television programs via streaming over the internet and mobile devices. As the ultimate resolution of this issue depends on the proper interpretation of the Copyright Act, it may be necessary for parties to raise the matter before the Supreme Court unless Congress revises the statute to clarify the scope of the exclusive right of public performance.