When Aereo announced its plans to launch in Boston in the middle of this month, it drew strong reaction from CBS. On a May 1 conference call, CBS chief executive Leslie Moonves said, “[R]egarding Aereo, if they put up another signal, we’ll sue them again. We won in California. We lost in New York. They say they’re going to go to Boston and we’ll be in Boston, and we’ll follow it.”
CBS corporate communications executive Dana McClintock was just as direct. He tweeted, “We will sue, and stealing our signal will be found to be illegal in Boston, just as it will be everywhere else.”
Were those threats to chase Aereo to the four corners of the U.S. judicial system? Did it create an “actual controversy”? Those who answer “yes” might wish to hang out with lawyers more.
Earlier this month, Aereo sued various CBS stations over its expansion plans and cited the Moonves comment and McClintock tweet as evidence of a controversy that needed resolution. Aereo sought a declaration on the legality of its system of capturing television signals for enjoyment on subscribers’ digital devices.
On Tuesday, the broadcasters filed a response. The defendants blast Aereo’s “gamemanship,” and declaring no actual controversy, yet they explain away CBS executive comments and push a New York judge to dismiss Aereo’s complaint as improper forum shopping on “future activities.”
New York, New York. CBS defendants say they know why Aereo would prefer to make it there.
“Aereo clearly fears that circuits outside the Second Circuit, which are not bound by the Cablevision and Aereo decisions, will follow the lead of Judge Wu [see here], and asks this Court to prevent that from happening,” says the CBS broadcasters in their memorandum (read here).
The CBS defendants say that Aereo can’t simply race to the courthouse for a declaratory judgment to gain a procedural advantage. If Aereo is to be sued, Aereo shall have the pleasure of being sued. Or as the defendants put it, “If the threat of litigation is as imminent as Aereo claims, it will have every opportunity to defend its actions if and when it launches in other cities and if it is sued in those jurisdictions.”
The broadcasters then attack Aereo for failing to allege any prejudice from having to wait, for filing a claim that’s “duplicative” of the counterclaim brought in the 15-month-old original lawsuit brought by broadcasters, and for failing to allege “where or when Aereo will launch.” In short, CBS says that Aereo hasn’t justified the jurisdiction.
But the most entertaining portion of the defendants’ memorandum is the part that explains why Moonves’ comment and McClintock’s tweet fail to establish an actual controversy.
The broadcasters suggest that Aereo shouldn’t rely upon a write-up from Deadline Hollywood.
“The claim that CBS would follow and sue Aereo ‘in different jurisdictions’ was made by the author of the article cited by Aereo, not Mr. Moonves. One simply cannot read what Mr. Moonves actually said and say with any certainty — much less with the level of concreteness necessary to sustain a declaratory judgment action — that CBS announced an intention to sue Aereo in any city other than Boston.”
And as for McClintock’s word that CBS “will sue, and stealing our signal will be found to be illegal in Boston, just as it will be everywhere else” …
“Mr. McClintock’s ‘threat’ clearly is contained to Boston; his only reference to other locations is the vague assertion that Aereo “will be found to be illegal’ ‘everywhere else’ — hardly a concrete promise that any of the named defendants intends to sue Aereo in some other location.”
So, CBS hardly denies that Aereo will eventually be sued … and sued … and sued. But it faults Aereo for not sufficiently making the case.
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