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In papers filed at the U.S. Supreme Court on Thursday, Aereo says it is ready for the high court to review its legality.
“We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court,” says Aereo CEO Chet Kanojia in a statement. “While the law is clear and the Second Circuit Court of Appeals and two different federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter. We want this resolved on the merits rather than through a wasteful war of attrition.”
A copy of Aereo’s response brief to the Supreme Court is below.
The digital company captures over-the-air TV signals and relays them to subscribers’ digital devices. The broadcasters have contended this is an infringement on their copyrights and specifically, a violation of their performance rights.
According to Aereo’s papers to the Supreme Court, “The core issue in this case is whether a consumer can access and control an individual, remotely located antenna and digital video recorder, owned by a third party, to record and view local, over-the-air broadcast television programming without subjecting the third party to liability for infringing copyright owners’ exclusive right to perform works ‘publicly.’ It is well settled that a consumer can deploy such equipment at home without infringing copyright.”
Aereo has reformulated the question that broadcasters such as CBS, NBC, Fox and ABC presented to the high court. Originally, broadcasters asked the nine justices to review “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.”
Since launching in March, 2011, with funding from Barry Diller and other investors, Aereo has been as famous for the legal controversy as the service it offers customers. After originally setting up in the New York market, TV broadcasters quickly lodged two lawsuits there. A federal judge denied the broadcasters’ request for an injunction, and the ruling was affirmed by the 2nd Circuit Court of Appeals on the basis that unique copies for each customer constitute private performance.
Aereo has provoked other lawsuits from broadcasters as it has expanded its service, including litigation in Massachusetts and Utah. One of Aereo’s competitors has been involved in legal disputes with broadcasters in California, Illinois and the District of Columbia. Judges around the nation have come to different conclusions about whether the relaying of over-the-air television to individuals constitutes private or public transmission, and the broadcasters hope that the inconsistency in judicial reasoning is a factor that might compel the Supreme Court to take up the case and revisit the 2nd Circuit’s decision not to order an injunction.
In a cert petition filed at the Supreme Court in October, the broadcasters wrote that the 2nd Circuit ruling “threatens to upend” the billions of dollars that the TV industry has invested in programming “by blessing a business model that retransmits ‘live TV’ to paying customers without obtaining any authorization or paying a penny to the copyright owners.”
If the high court agrees to review the case, it would have huge stakes — arguably the biggest case for the entertainment industry since the high court reviewed the Sony Betamax VCR in the 1980s. Several broadcast networks have threatened to abandon public airwaves if they ultimately lose in the Aereo case. In anticipation, stakeholders have filed amicus briefs with the high court. Among those who have weighed in are the National Football League, Major League Baseball, Time Warner, ASCAP and Viacom.
Others have touted the case in other ways. For example, on Thursday, Cablevision released a white paper that takes the view that Aereo (a potential competitor) violates copyright laws because it retransmits broadcast content without a license, but that the broadcasters went too far in their cert petition and set up a high court review that could impact the legality of everything from the Apple iCloud to Cablevision’s own remote storage DVR service.
The broadcasters want a showdown at the high court. Aereo wants it. Even the NFL says, “Game on!” Now the question is whether the Supreme Court will agree to hear the case.
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