Cablevision Friends Broadcasters in Aereo Case
Claims remote-recording statute should not apply
September 25, 2012
Cablevision is urging a federal court to reverse
a July ruling that allowed Aereo to continue retransmitting broadcast TV
signals without permission.
“Cablevision has a strong interest in this case,” the pay TV provider said in
an amicus brief filed Sept. 21 with the U.S. Court of Appeals for the Second
Circuit in Lower Manhattan. “The district court relied squarely on the Cablevision
decision in upholding the lawfulness of Aereo’s retransmission system.”
Aereo compares its service to Cablevision’s remote-storage digital video
recording model, which set a legal precedent. Judge Alison Nathan of the U.S.
District Court for the Southern District of New York agreed with Aereo. On July
10, she denied an injunction sought by the broadcasters whose signals Aereo
retransmits. The case is on appeal.
Aereo beta launched in New York earlier this year as a subscription service
providing 20 broadcast TV signals to mobile devices. Broadcasters filed for an
injunction to stop it on the basis of copyright infringement, because the
company did not seek retransmission consent.
Aereo claimed it was not subject to retrans consent because it technically does
not rebroadcast TV signals, but rather records them to a cloud-based server,
where subscribers access them through individually leased antennae. Aereo
claimed this practice exempts it from the public performance standard on which
TV signal copyright law rests. Cablevision disagreed, quoting from the district
court’s determination that “the ‘vast majority’ of Aereo subscribers are
‘dynamic users’ who are ‘randomly assigned an antenna each time they use the
“That forecloses any claim that Aereo’s antennas render its performances private,”
Cablevision’s brief said.
Cablevision noted that its own case turned in part on the definition of “public
performance.” If a transmission is available to just one person, it’s not
considered public performance. Aereo claims it does not provide a public
performance because its subscribers access programming through individualized
remote hard drives, similar to the way Cablevision subscribers access record
programming through their home set-tops.
“Aereo’s system is nothing like—much less ‘materially identical’ to the RS-DVR
for copyright purposes,” Cablevision’s brief stated. “Unlike Aereo, Cablevision
operates a licensed cable system that retransmits content to subscribers
pursuant to agreements with content providers.”
Cablevision said its RS-DVR system is not an “inherent or necessary part of
allowing subscribers to watch television programs ‘live’ on Cablevision’s
With Aereo’s system, hard-drive copies are an inherent part of program
“Customers cannot watch live television on Aereo’s system without making
those hard-drive copies,” the brief said. “Aereo relies on those copies to
support its private-performance argument.”
Cablevision further claimed that because Aereo is infringing on broadcasters’
copyrights, it is also liable for encouraging its subscribers to do so.
“Even if the court agrees with Aereo on the public-performance issue, this case
would still go far beyond Sony,” which established fair use, the brief
“Sony recognized a fair use right to record, for later viewing,
programming that consumers were already lawfully receiving in the home
and could readily have watched live through a broadcast antenna or cable
system,” Cablevision’s brief said. “In contrast, the live broadcast programming
a customer watches with Aereo’s system is not programming he is already
receiving and could readily watch live through Aereo’s system….
“Nothing in Sony supports the view that a copy made for one valid ‘fair
use’ purpose, such as time-shifting, may also be used for other, invalid
purposes, such as watching live television through an otherwise unlawful
retransmission service, particularly where that other invalid purpose is the
primary reason for the copy. For that reason, too, Aereo’s customers lack any
fair use right to make hard-drive copies, and Aereo is secondarily liable.”
“The district court’s judgment should be reversed,” Cablevision concluded.
August 6, 2012: Report: Aereo Legality Could Hinge on Patents
Aereo’s copyright infringement case may rest on its patents, according to ReadWriteWeb.
The publication quotes an IP expert saying that patents typically have “no
relevance” in copyright cases, but that Aereo is an exception.
August 2, 2012: Aereo Dangs the Torpedoes, Offers Free Trial, $1-a-day Pass
Aereo today offered up a free trial for New Yorkers who want to try the
subscription service that retransmits broadcast signals to mobile devices. A
new feature allows Big Apple denizens to try Aereo for free “for a continuous
one-hour period each day,” and for a $1 a day for those who want to try it out
a little longer.