TV broadcasters have petitioned the Second Circuit Court of Appeals for an “en banc” review in the Aereo case. The move comes after the appellate circuit agreed with a lower district court judge in denying an injunction against the digital TV upstart.
The plaintiffs say in a statement to The Hollywood Reporter, “This petition is an important next step in ensuring the protection of our copyrighted material.”
Additionally, the petition for a rehearing has drawn an amicus brief from Paramount Pictures, Warner Bros., MGM, the Directors Guild of America, the Screen Actors Guild and more.
Aereo was launched in the New York market in March 2012 with financial backing from Barry Diller and other investors.
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Soon after, broadcasters filed two lawsuits. One group of plaintiffs included Fox Television, Univision, WPIX and PBS. The other group included ABC, CBS, NBCU and Telemundo.
The broadcasters hoped to convince a federal judge that Aereo’s system of thousands of tiny antennae capturing over-the-air signals and then transmitting them to mobile and digital devices was a violation of their public performance rights.
However, U.S. District Judge Alison Nathan declined the requested injunction based upon a 2008 decision concerning Cablevision’s remote-storage DVR that held that because “each RS-DVR playback transmission is made to a single subscriber using a single unique copy produced by that subscriber … such transmissions are not performances ‘to the public.'”
Earlier this month, two of three judges at the Second Circuit agreed with that assessment.
The opinion wasn’t unanimous, and broadcasters have also felt emboldened by a ruling that went in their favor on an Aereo-like service on the West Coast.
The dispute might eventually land at the Supreme Court — or could push broadcasters for new legislation — but in the meantime, the broadcasters are now knocking on the door of the Second Circuit a second time, this time looking to have their concerns addressed before the full body of judges there.
According to a petition filed on Monday, the broadcasters give reasons for a fuller review:
“A recent split decision of this Court raises a question of exceptional importance; it effectively overturns a congressional mandate that is the foundation for much of the current system for delivery of television programming. The majority opinion in WNET v. Aereo, Inc., guts Congress’s decision in 1976 to treat all services that retransmit broadcast programming to the public as being engaged in ‘public performances’ and thus needing licenses from the copyright owners of the shows. Unless reversed, that decision will wreak commercial havoc by allowing new and existing distributors to design around this license requirement and profit from the delivery of copyrighted programming while paying nothing for it.”
The broadcasters, represented by a team of lawyers at Jenner & Block, go on to say that the judges who have ruled in Aereo’s favor have attempted to “reconcile” the Cablevision precedent with too much attention paid to transmissions generated from a master copy.
“Indeed, under that reading,” the broadcasters say, “If four people happen to rent the same DVD copy of Braveheart from Blockbuster, that would result in a public performance, but if a retransmitter like Aereo makes a separate copy for each viewer, it can retransmit the Super Bowl to thousands of subscribers and that would be deemed ‘private’ performances.”
Separately today, a group of amici in Hollywood are also urging the Ninth Circuit for further review. Many big Hollywood studios and labor guilds have joined the cause against Aereo, saying that the financial health of the industry is at stake and urging the Second Circuit to grant an en banc rehearing because the ruling earlier this month is said to threaten “significant harm not only to Appellants-Broadcasters but to the producers who underwrite and the hundreds of thousands of individuals who work to create the copyrighted works that that Aereo appropriates for free.”
And here is the broadcasters’ entire petition lodged with the Second Circuit Court of Appeals:
E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner
