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Aereo Beta Launches Despite Legal Challenges
3/14/2012

NEW YORK: Aereo is launching its TV rebroadcasting service in New York despite a legal challenge by broadcasters whose signals were not licensed by the start-up. The company announced a beta launch today, offering a special link on its website for New Yorkers to sign up for service. Aereo is offering inaugural subscribers a free 90-day trial followed by a $12 monthly service charge for 20 broadcast channels and 40 hours of cloud-based content storage for usage on up to five devices.

Aereo unveiled its plan last month to retransmit live broadcast TV signals to personal devices—smartphones, tablets, laptops and the like—using tiny antennas that would be individually owned by subscribers. Aereo claimed this ownership model exempted it from having to seek retransmission consent from broadcasters. Broadcasters disagreed and sued in federal court to enjoin Aereo from launching on the basis of copyright infringement.

Fox, Univision, PBS and other local New York stations filed suit March 1 in U.S. District Court for the Southern District of New York. The group retained Chicago-based Jenner & Block copyright attorney Steven Fabrizio, who helped successfully argue the copyright case against file-sharing platform, Napster. ABC, CBS, NBC and Telemundo claimed copyright infringement in a separate lawsuit filed by Bruce P. Keller and Michael R. Potenza of Debevoise & Plimpton LLP In New York. Both request permanent injunction of Aereo and unspecified damages.

R. David Hosp of Goodwin Proctor in Boston is defending Aereo’s position on the basis of three legal principles: That the airwaves are owned by the public and licensed to broadcasters in the public interest; the Sony Betamax decision establishing non-infringement rights for certain personal uses; and the Cablevision decision allowing remote digital video storage.

Aereo is backed by Barry Diller, an online impresario who launched the Fox broadcast network back in the day. Now Diller is taking on the business he once helped build. He recently told a crowd at the South by Southwest conference in Austin, Texas, that broadcasters did not have rights of refusal for distribution intermediaries, according to paidContent.org. He said Aereo would pay retransmission fees when Radio Shack started sharing profit on broadcast antenna sales.

Aereo is currently available by invitation only, effectively limiting access to plaintiffs who may want to mine it for specific legal points. Expansion plans include compatibility with iPhones, iPads, Roku boxes, AppleTVs and MacBooks; and Android support.

Deborah D. McAdams
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