Barry Diller - H 2013
Getty ImagesAereo is expanding its footprint and so is the litigation that challenges the upstart tech company’s right to digitally deliver television.
The latest lawsuit came Tuesday in a Massachusetts federal court. Hearst Stations, owner of ABC affiliate WCVB-TV, is demanding an injunction that would stop Aereo, which launched in the Boston area in May, from using antennas to capture over-the-air programming for the delivery onto consumers’ digital devices.
According to Hearst’s lawsuit, “If Aereo is permitted to profit from the unauthorized retransmission of copyrighted television programming, WCVB will be deprived of existing and potential revenue streams from advertising and authorized retransmissions.”
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Aereo is already at war with the other networks over its technology.
The company, which was backed financially by Barry Diller and others, was able to fend off a preliminary injunction in round one in a New York federal court. Then, Aereo was able to gain an important appellate victory in April from the Second Circuit.
But what other courts around the nation will decide is still an open question. Especially since a California judge decided to stop one of Aereo’s competitors earlier this year.
As Aereo moved into the Boston area, it brought a lawsuit against CBS that sought a declaration about the legal validity of its system. CBS reacted by accusing Aereo of jumping the gun, and it’s still to be decided whether or how that lawsuit will proceed.
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Whatever happens, it looks like Aereo will be tested in a Massachusetts court. In some ways, it is home turf for Aereo as the company is headquartered in Boston. Still, given a choice, Aereo would have preferred to adjudicate the legality of its Boston operations in a court that was beholden to the Second Circuit.
In asking for a judge’s intervention, Hearst cites the Copyright Act’s public performance rights. In the Aereo cases, the main subject of controversy has been whether Aereo’s delivery of television to individual subscribers is “to the public.”
The lawsuit (read here in full) also emphasizes Aereo’s “Watch Now” feature. Aereo has fought back against the broadcasters’ legal claims by pointing to a prior Cablevision ruling and arguing that its subscribers are watching playbacks of recorded material. Hearst attempts to direct the judge’s attention to the live nature of Aereo’s service.
“Aereo claims that its service enables its subscribers to watch WCVB’s programming ‘live,’ i.e., at the same time that it is broadcast by WCVB,” says the lawsuit. “Indeed, this is a key aspect of Aereo’s service and has featured heavily in its advertising.”
The lawsuit also makes a claim that Aereo is responsible for the reproduction of derivative works. It’s argued that Aereo “creates a derivative work when it technologically alters each of WCVB’s copyrighted audiovisual works, including, but not limited to, the Television Programs, from their original digital broadcast format into a different digital format that facilitates Aereo’s retransmission of WCVB’s copyrighted audiovisual works over the internet.”
Hearst is represented by a team of attorneys at Holland & Knight.
E-mail: Eriq.Gardner@THR.com
Twitter: @eriqgardner
