Cablevision Friends Broadcasters in Aereo Case

NEW YORK-- 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 system.’”

“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 system.”

With Aereo’s system, hard-drive copies are an inherent part of program delivery.

“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 stated.

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.

See…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.