TV broadcasters reiterated their position against Aereo in a brief filed Monday with the U.S. Supreme Court, labeling a lower-court decision denying their request to shut down the Internet TV startup “nonsensical” and saying Aereo’s legal arguments defied common sense.
The 16-page brief from ABC, Fox, CBS, NBC and others accused Aereo of designing its business “to achieve the for-profit exploitation of the copyrighted works of others on a massive scale.”
The broadcasters were responding to Aereo’s Dec. 12 brief in the case, in which the startup — whose backers include Barry Diller’s IAC — said it would not challenge the plaintiffs’ request for Supreme Court review of the case.
Aereo, which first launched in New York City in March 2012, offers access to live over-the-air TV signals and recorded programming to subscribers on a range of devices. Aereo argues that the service is a private performance, allowable under fair-use provisions of the Copyright Act, because the tiny antennas it uses are allocated to specific users.
Broadcasters sued Aereo last year, but the Second Circuit denied their request for an injunction to force Aereo to stop offering the service. The startup has successfully defended itself so far by relying on a 2008 Second Circuit ruling that found Cablevision Systems’ remote-storage DVR (RS-DVR) service did not violate copyright laws.
In October, the broadcast networks and other stations petitioned the Supreme Court to review the case, arguing Aereo undercuts their ability to collect retransmission fees from cable and satellite TV providers.
In its Supreme Court filing, Aereo said that the “core issue in this case is whether a consumer can access and control an individual, remotely located antenna and digital video recorder, owned by a third party, to record and view local, over-the-air broadcast television programming without subjecting the third party to liability for infringing copyright owners’ exclusive right to perform works ‘publicly.’ It is well settled that a consumer can deploy such equipment at home without infringing copyright.”
Broadcasters, in their response, accused Aereo of bending over backward to portray itself — inaccurately, they contend — as merely a provider of technology. “Make no mistake about it,” they said in the brief. “Aereo is not a hardware supplier. It offers a subscription service.”
The broadcasters said the Second Circuit’s decision on Aereo “threatens to have a distorting — and quite likely irreversible — effect on the broadcast television industry” unless the Supreme Court intervenes. They urged the high court to reject the lower court’s “nonsensical conclusion” that the Copyright Act’s Transmit Clause does not apply to Aereo.
“Aereo’s response brief gets a great deal wrong, but it gets one important thing right: This exceptionally important case warrants this Court’s immediate review,” the broadcasters said in the brief.