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Broadcasters petition Supreme Court to kill Aereo

Mon, 10/14/2013 - 1:51pm
Brian Santo

The major broadcast networks have filed an appeal directly with the Supreme Court, hoping to get a legal decision that will kill Aereo.

ABC, CBS, Fox and Comcast-owned NBC, along with Univision, Telemundo, PBS and several individual TV stations have signed the petition asking the Court to decide that Aereo's methods violate copyright law.

Aereo has yet to provide evidence of much market success, but it enrages broadcasters on two counts: 1) they believe Aereo is stealing their signals, and 2) Aereo becomes an option that MVPDs and their subscribers can use against broadcasters when broadcasters institute blackouts during retransmission consent disagreements with MVPDs.  

Aereo provides a subscription service to store and then deliver broadcast TV content, complete with some DVR-like functions. The company uses arrays of micro-antennas – one per subscriber – to pull in over-the-air (OTA) signals.

Aereo claims its system is directly analogous to a network DVR, and so far courts have agreed, enabling the company to keep operating and expanding into new markets. Broadcasters have lost one request for an injunction with the U.S. Court of Appeals for the Second District, and had a subsequent petition turned down by the same court.

Last week, a court in Boston denied a motion by Hearst, which owns the CBS affiliate in that city, for a preliminary injunction that would have shut down Aereo there. The court said its decision to deny the injunction was based the unlikelihood of Hearst prevailing in a suit against Aereo, so the decision was affirmative for Aereo, even if in a roundabout legalistic way.

Cablevision issued a statement in support of Aereo, where in the past it had been critical of the company. Largely it's because the broadcasters' arguments have shifted, and now represent a direct threat.

In the past, broadcasters have argued that what Aereo was doing was NOT analagous to network DVR (nDVR), and therefore illegal. Courts have disagreed. In the petition to the Supreme Court broadcasters suggest that what Aereo is doing IS, in fact, akin to nDVR, and Illegal, implying that nDVR is by nature illegal. Cablevision went throuhg years of legal wrangling to establish the legality of nDVR, and is not supporting this tack. 

The company statement says: "We are dismayed by the broadcasters' brazen attempt, in a case about Aereo, to go after the legal underpinning of all cloud-based services, everything from digital lockers to Cablevision's own RS-DVR service.  Given that there are much narrower -- and more persuasive -- legal grounds for invalidating Aereo that do not threaten such underpinnings, the broadcasters' approach can only be seen as a willful attempt to stifle innovation.   If Aereo ends up prevailing, it will serve the broadcasters right."

[This story was edited to add Cablevision's statement. - ed.]

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