TV Broadcasters Fire Back at Aereo's Supreme Court Claims

Aereo CEO Chet Kanojia - P 2013

 Aereo CEO Chet Kanojia - P 2013

Both sides in the debate over Aereo's legality hope that the U.S. Supreme Court agrees to a review. But will a dispute over the dispute get in the way of that happening?

Aereo, of course, is the technology company that captures over-the-air TV broadcasts and transmits them to subscribers' digital devices. The company claims this is fair because each transmission is captured and relayed individually and privately. The broadcasters contend that it is a public performance in violation of copyright laws.

STORY: TV Broadcasters Ask Supreme Court to Review Aereo Dispute (Read Petition)

Earlier this month, in response to broadcasters petitioning the high court, Aereo essentially responded, "Bring it on!" The broadcasters want to erase the stink of a denial of an injunction in the 2nd Circuit while Aereo looks to avoid nationwide litigation on the subject. But that's not to say that both sides are walking in lockstep with each other.

On Monday, ABC, CBS, Fox, NBCU and other broadcasters filed a reply brief to what Aereo had to tell the Supreme Court. According to the document, "Aereo’s response brief gets a great deal wrong, but it gets one important thing right: This exceptionally important case warrants this Court’s immediate review."

The question, though, is what would the Supreme Court be agreeing to hear?

The broadcasters want to present the issue of "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."

Aereo wishes to address the issue of "whether Aereo 'perform[s] publicly' … by supplying remote equipment that allows a consumer to tune an individual, remotely located antenna to a publicly accessible, over-the-air broadcast television signal, use a remote digital video recorder to make a personal recording from that signal, and then watch that recording."

There's a difference.

"Rather than defend the Second Circuit’s reasoning, Aereo devotes substantial effort to attempting to recast itself as something it plainly is not—a mere supplier of equipment that individuals may use to enhance their 'private reception of broadcast television,' ” says the broadcasters' reply. "Make no mistake about it. Aereo is not a hardware supplier. It offers a subscription service."

The inability to see eye-to-eye on the issue -- not to mention the technology at hand -- is something that the two sides have been battling each other about from the opening days of the lawsuit originally filed in New York federal court. During hearings before U.S. District Judge Alison Nathan, who ultimately denied an injunction, much was made about thousands of Aereo subscribers who could simultaneously watch a live transmission of the Super Bowl. Ultimately, the judge -- and later the 2nd Circuit -- agreed with Aereo's argument that the proper legal precedent was a 2009 case involving Cablevision's remote-DVR storage, which was deemed not to be "to the public" because unique copies were made and transmitted for individual use.

The broadcasters don't agree that the Cablevision ruling shields Aereo, and the latest filing goes to some lengths to distinguish Aereo's service from other technologies out there. If the broadcasters didn't do this, they might have Supreme Court justices leery of making a ruling that could impact technological development at large.

As the broadcasters put it: 

"Aereo also spends considerable time talking about DVRs and cloud computing, rather than its own business model. That impulse to change the subject is understandable. But ultimately it is Aereo’s business model — and not distinct technologies that allow individuals to access content they have already paid for — that is at issue here. Thus, contrary to Aereo’s intimations, Aereo and those technologies do not stand or fall together. Aereo’s business model depends distinctly on offering access to the copyrighted content of others without authorization, undercutting competing services that pay licensing fees to offer access to that content. Aereo does exactly what Congress prohibited in the Transmit Clause."  

Here's the entire reply brief: