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MAY
6
2 YEARS

Aereo Brings New Lawsuit Against CBS Over Expansion Plans

Aereo looks to have its technology declared legal wherever it might go.

Barry Diller - H 2013
Getty Images
Barry Diller

Aereo won't wait around to be sued again.

The company has decided to fire the next shot in a fight with broadcasters with a lawsuit aimed at CBS. Yes, this time, Aereo is the plaintiff.

Aereo, the company backed by Barry Diller that allows subscribers to record local TV without a pay-TV subscription and watch online, recently announced that it would be launching in the Boston metropolitan area on May 15.

Reacting to the news, one of CBS' press officials declared on Twitter that the broadcaster would sue Aereo over its expansion plans and that "stealing our signal will be found to be illegal in Boston, just as it will be everywhere else."

CBS chief executive Leslie Moonves has made similar comments.

Now, Aereo is taking seriously the threats of being sued in places it plans to do business. So, beating CBS to court, Aereo has filed a new complaint (read here) in New York federal court and is seeking a declaratory judgment that Aereo's technology does not infringe upon the broadcaster's copyrights.

"The fact that CBS did not prevail in their efforts to enjoin Aereo in their existing federal lawsuit does not entitle them to a do-over in another jurisdiction,” said Aereo in a statement about the new lawsuit.

A CBS spokesperson responds, "These public relations and legal maneuvers do not change the fundamentally illegal nature of Aereo’s supposed business."

By filing the action in New York, Aereo hopes to lean on favorable precedent. In early April, the Second Circuit Court of Appeal determined that a federal judge properly declined to issue an injunction that would have shut down Aereo.

The broadcasters have asked the Second Circuit to rehear the appeal before a full panel of judges. Meanwhile, the case also continues in the discovery stage at a lower federal court.

Now, a new front in the war has opened up.

What happens outside of the 2nd Circuit jurisdiction (covering New York, Vermont and Connecticut) is uncertain.

Aereo hopes that its system of playback transmissions will be deemed wherever it goes as performances not "to the public" and thus, not a copyright infringement. Some case law suggests that Aereo might have a problem on the west coast as well as in Europe, if it ever chose to go there. (Aereo's expansion plans have seemingly avoided those potential problem spots.)

The upstart is now seeking a nationwide permanent injunction against CBS and its licensing entities. The big question in Aereo's latest lawsuit is whether a New York judge will exercise authority to stop the broadcasters from seeking action in other jurisdictions.  CBS might attempt to have the case transferred.

A CBS spokesperson says, "The issue of unauthorized streaming of copyrighted television programming is now being contested in the 2nd Circuit and the 9th Circuit, and wherever Aereo attempts to operate there will be vigorous challenges to its Illegal  business model.”

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner