Fox and Dish Debate What Aereo Ruling Means for Place-Shifting Technology

Other companies including Cablevision and FilmOn are also making unique interpretations of the Supreme Court's decision.
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Any Supreme Court opinion is important. But maybe just as consequential are the interpretations from movers and shakers.

Within 48 hours of the high court delivering what might be a fatal blow to Aereo, Fox Broadcasting and Dish Network are telling the 9th Circuit Court of Appeals how to read Justice Stephen Breyer's opinion. The two sides are in the midst of an appellate dispute concerning Dish's Hopper with Sling, also known as "Dish Anywhere," which a federal judge last September refused to shut down.

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The technology combines the controversial ad-skipping with the capability of place-shifting.

To Fox, that sounds familiar.

"In Aereo, the Supreme Court held that Aereo's unauthorized retransmission of Fox's television programming over the Internet constitutes an unauthorized public performance of Fox's copyrighted works," Fox points out to the 9th Circuit. "Dish, which engages in virtually identical conduct when it streams Fox's programming to Dish subscribers over the Internet —albeit also in violation of an express contractual prohibition —has repeatedly raised the same defenses as Aereo which have now been rejected by the Supreme Court. Among other things, the Supreme Court rejected Aereo's argument that it is merely an equipment provider and that Aereo's subscribers were the ones transmitting content over the Internet to themselves."

Fox adds that the Supreme Court adopted its argument about the definition of public performance to encompass "any device or process that transmits Fox's programming to the public, even if each person receives it at different times or different places."

In its own papers to the 9th Circuit, Dish unsurprisingly comes to another conclusion, pointing to the Supreme Court's "constant refrain that Aereo looks just like the cable companies," noting that it (unlike Aereo) pays retransmission fees to Fox. Dish also distinguishes its service from Aereo's by saying that Sling isn't centrally controlled but rather lives in the customer's home.

Dish also emphasizes that Aereo was knocked for a service that transmitted television programming to its own subscribers "who lack any prior relationship to the works," but says the Supreme Court made clear that "does not extend" to a subscriber’s hold on content he or she already owns or possesses. Quoting Justice Breyer as saying, "In addition, an entity does not transmit to the public if it does not transmit to a substantial number of people outside a family and its social circle," Dish says that is a "direct reference" to Sling.

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Meanwhile, other companies are coming up with their own unique interpretations of the Aereo ruling.

Perhaps the award for boldest post-decision spin goes to Cablevision, whose remote-storage DVR is what Aereo CEO Chet Kanojia has said inspired him to develop his technology in the first place.

Within minutes of the release of Justice Breyer's decision on Wednesday, Cablevision had issued a statement declaring in part that it was gratified that the high court was "protecting consumer-friendly, cloud-based technologies, such as RS-DVR."

Compare that to what Justice Breyer said:

"We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us. We agree with the Solicitor General that '[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented."

And then there's FilmOn, which unsuccessfully attempted to intervene in the Aereo case at the Supreme Court. The company is reading Justice Breyer's opinion as meaning that companies like Aereo and FilmOn are cable services, a bit of step from Breyer's word of "Aereo’s overwhelming likeness to the cable companies." To FilmOn, that means that the company can avail itself of compulsory copyright licensing. A FilmOn spokesperson tells The Hollywood Reporter it has already begun the process.

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FilmOn has been attempting this argument for some time, but in 2011, a judge looked at another would-be digital TV service called ivi and ruled it couldn't be considered a cable system under Section 111 of the Copyright Act,  which established a compulsory licensing system. At the time, the judge wrote, "No technology... has been allowed to take advantage of Section 111 to retransmit copyrighted programming to a national audience while not complying with the rules and regulations of the FCC and without consent of the copyright holder."

It appears as though at least one company is willing to see if the Supreme Court's decision has changed things. In his opinion, Justice Breyer shrugged off the need to create bright lines or at least guidance about what's permissible and what's not. It now falls to other judges to pick up the slack.


Twitter: @eriqgardner