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In Supreme Court Brief, TV Networks Threaten to Reconsider Public Broadcasting

In advance of an April 22 hearing concerning Aereo, the petitioners argue their position that the digital service publicly performs their content.

 Aereo CEO Chet Kanojia - P 2013
Aereo CEO Chet Kanojia

Two months before TV broadcasters are scheduled to appear before the Supreme Court in oral arguments concerning the legality of the controversial startup Aereo, the petitioners have filed a brief outlining arguments and warning of consequences.

The issue presented to the high court is "whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet."

In the brief authored by superstar team of attorneys including former U.S. solicitor general Paul Clement, the TV broadcasters attempt to sway eight justices (Alito has recused himself) to an interpretation of the Transmit Clause from the Copyright Act of 1976 that would preclude Aereo from capturing over-the-air TV signals with antennae and then passing along such programming to subscribers' digital devices. According to the brief, "If the transmit clause could be circumvented through the simple expedient of simultaneously supplying each user with a distinct transmission generated from a distinct copy, then cable and satellite companies could potentially devise Aereo-like workarounds of their own, and in the process render the transmit clause a dead letter."

The petitioners are appealing the denial of an injunction at the 2nd Circuit and are hoping to undercut Aereo's own position that what it does is private in nature. The TV broadcasters reject Aereo's conclusion that cloud computing and other novel technologies could be at stake, but they do raise dire warnings about what might happen should the Supreme Court rule in Aereo's favor. As the brief states, "Indeed, if that is the world in which broadcasters must live, then they may be forced to reconsider whether they can afford to continue making the same quantity and quality of programming available to the public for free in the first place."

Here's the full brief: