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Taking Aereo case to the nation’s highest court is risky business

Television broadcasters have been losing in federal courts across the land in their desperate attempt to stop content aggregator service Aereo. Last week, a group of major networks joined to roll the dice by asking for a decision from the highest court in the land: the U.S. Supreme Court. It is risky strategy indeed.

First of all, the Supreme Court has to vote to even accept the case. A roster of lower courts have been unanimous in refusing to stop Aereo, shooting down the arguments of the broadcasters and allowing the company to grow into new markets across the country. Barry Diller, the billionaire media mogul who is backing the startup Aereo TV service said he expects it to reach between 30 percent of the U.S. television audience with the wireless OTA/Internet service by the end of the year.

If the court were to accept the case, the broadcasters — which includes NBC, CBS, ABC, PBS, Fox, Telemundo and Univision — face a significant challenge in convincing the Supreme Court that all the other courts were wrong.

The broadcasters argue that Aereo’s streaming of its signals is a “public performance” that violates the Copyright Act. Aereo counters that it simply rents antennas to its subscribers, which are used to pick-up on-air signals. It argues it is not charging customers for streaming video.

Aereo’s case is largely based on a precedent set in 2008, when Cablevision won a suit allowing its remote DVR service. In a statement after the filing, Cablevision said the case that broadcasters are taking to the high court is a “willful attempt to stifle innovation.”

The broadcasters argue that clouds and digital lockers to store music are designed to comply with the Cablevision ruling and “seek to avoid public performance liability by creating user-associated copies of each song rather than sharing song files among multiple users.” 

Cablevision said it is dismayed that broadcasters are challenging the legal underpinning of all cloud-based services, everything from digital lockers to Cablevision’s own RS-DVR service.

Initially, Cablevision supported the broadcasters against Aereo. In its statement on the Supreme Court filing, the operator said the broadcasters have “more persuasive legal grounds for invalidating Aereo” that do not threaten new technology. “If Aereo ends up prevailing, it will serve the broadcasters right,” the statement said.

Meanwhile, in Utah, a group of local broadcasters filed a copyright lawsuit against Aereo, which launched its service in the state in August.

In their lawsuit, KSTU-TV (Fox), KUTV-TV (CBS) and KMYU-TV (My Network TV) and Fox Broadcasting Co. argued that Aereo’s streaming service is a lot more than just a remote antenna farm.

“Aereo captures local television stations over-the-air broadcast signals, reprocesses and copies the programming contained in those broadcasts, and then retransmits the programs over the Internet to members of the public who pay Aereo for a subscription. Neither the local stations nor the copyright owners have authorized Aereo to retransmit their programming,” the suit said.

And finally, with the news that a U.S. District Court judge in Massachusetts has decided not to block Aereo from delivering a Boston TV station online while the court considers the underlying broadcaster challenge to the service, FilmOn has asked U.S. District Judge Rosemary Collyer in Washington, D.C., to revise her Sept. 5 order banning it from streaming OTA television shows to users

Collyer’s injunction does not apply to states in the Second Circuit — New York, Connecticut and Vermont — which declined to enjoin Aereo. The injunction was sought by the Big Four broadcast networks, as well as Gannett and Allbritton, which sued FilmOn for copyright infringement.

Alki David’s FilmOn X argues that with the Aereo ruling it should be able to operate in four New England states. “This court must, in the interest of comity, defer to the judgment of its sister court,” FilmOn X said in its filing. Collyer ordered the broadcasters to respond to FilmOn X’s motion this week.