Fox, PBS take issue with ruling that allowed service to continue

Broadcasters are challenging a federal judge’s rationale for allowing Aereo to continue streaming their signals without their permission.

Aereo, which has backing from Barry Diller, launched earlier this year in Manhattan and streams channels to customers paying a subscription fee. Aereo claims its service is legal, as it relies on thousands of dime-sized antennas that are assigned to each customer.

In a brief filed with the 2nd Circuit Court of Appeals in New York on Friday, Fox, Univision, PBS and other entities argued that U.S. District Judge Alison Nathan ignored portions of the Copyright Act of 1976 in which Congress mandated that a retransmission service is a public performance and therefore requires a license, “even if separate retransmissions go to different people at different places at different times.”

In July, Nathan rejected broadcaster efforts to shut down the service, relying on a 2008 decision in the 2nd Circuit Court of Appeals that upheld the legality of Cablevision’s remote DVR.

But in the broadcasters’ brief, they challenged Nathan’s reasoning.

“The district court here reached a contrary conclusion regarding Aereo based primarily on the fact that, just prior to retransmitting a show to subscribers, Aereo first makes a unique copy of at least several seconds of that show for each subscriber and then transmits to its many subscribers from those unique copies,” the broadcasters’ brief stated.

“According to the district court, by interposing these intermediate copies in its chain of retransmission, Aereo makes ‘private’ what otherwise indisputably would have been public performances requiring a license. That reasoning, however, ignores the statute, which by its terms requires the aggregation of individual transmissions to particular recipients, ‘whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times.’”

Aereo has until Oct. 19 to file its brief, and the broadcasters have until Nov. 2 to file a reply.

ABC, CBS, NBC and others are pursuing an appeal in a separate action.

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