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Aereo Won't Fight Broadcast Supreme Court Appeal
12/12/2013

WASHINGTON — Aereo chief Chet Kanojila said his company won’t oppose broadcasters bid for a review by the Supreme Court.

“We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court,” he said in a statement. “While the law is clear and the Second Circuit Court of Appeals and two different federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter. We want this resolved on the merits rather than through a wasteful war of attrition.”

Both the Second Circuit and the U.S. District Court in Massachusetts have denied injunctions sought by broadcasters to shut down Aereo while the larger issue of copyright violation is decided. The Massachusetts decision, issued in a lawsuit filed by the Boston-based Hearst-owned ABC affiliate, WCVB-TV, is now on appeal in the U.S. Court of Appeals for the First Circuit in Boston. Meanwhile, courts in Washington, D.C. and Los Angeles have granted injunctions against FilmOn, a service said to mimic Aereo.

The brouhaha began in March of 2012 when Aereo, with the financial support of Barry Diller, launched in New York. Aereo elected not to negotiate carriage deals as other pay TV providers must, and was promptly sued by the TV stations it was offering to resell for $8 a month. Aereo claims its service does not fall under the same “public performance” copyright law that compels carriage deals between cable TV operators and broadcasters.

Aereo instead contends that its service is a “private performance” in the vein of a networked personal DVR a la Cablevision. Cablevision argued and won the right to offer a remote DVR service in 2008 when the Second Circuit deemed it a private performance. TV content copyright law hinges on this private-public performance determination.

While Aereo offers a subscription-based pay TV service to the public similar to cable and satellite providers, it claims to use a technology that does not serve a mass audience.

Aereo allows “consumers to record and watch broadcast programming using an individual antenna and DVR that they control via a laptop, tablet, or smartphone,” the company says in its Supreme Court brief. “A user accesses that equipment by logging onto Aereo’s website with an Internet-connected device and selecting a locally broadcast program just as that user might do using a home DVR. The user causes an antenna assigned solely to that user to tune to the broadcast signal for the station that is broadcasting the selected program.”

It further describes the antenna arrays deployed by Aereo in Boston, Atlanta, Miami, Salt Lake City, Houston, Dallas, Detroit, Denver and on Monday, in Baltimore.

“Each antenna in Aereo’s system consists of a pair of metal loops roughly the size of a dime. Eighty such antennas can be packed on one end of a circuit board, and 16 boards can be stored parallel to one another in a metal housing,” the filing states.

Broadcast engineers say tiny antennas receiving three-foot UHF TV transmission individually, rather than as a whole, defies physics. Aereo says not:

“In a factual finding that petitioners have not challenged on appeal, the district court rejected petitioners’ contention that ‘Aereo’s antennas function collectively as a single antenna.’ The court determined, based on extensive expert discovery and testimony, that ‘each antenna functions independently.’”

While the copyright decision hangs in the balance, the question of its impact grows. Fox’s Chase Carey has said the Fox broadcast networks will become pay TV nets. The National Football League and Major League Baseball filed an amicus brief with the Supreme Court siding with broadcasters, saying Aereo will drive them to pay nets, “adversely [impacting] the more than 11 million households in the United States that do not subscribe to cable or satellite”

Cablevision has weighed in on the case as well, in September of 2012 with an amicus brief supporting broadcasters in the Second Circuit, and more recently with a white paper saying broadcasters are casting too wide of a net in their defense.

“The broadcasters are justifiably critical of the Aereo decision,” it states. “But rather than pursue a measured response tailored to the problem at hand, they seek a massive overcorrection that would wipe out not only Aereo, but also Cablevision and much of the cloud computing industry in the process. Traditional copyright principles already provide more than adequate grounds for holding Aereo’s system unlawful. The public performance right should not be radically expanded to address a need that does not exist.”
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