NFL, Major League Baseball Warn That Aereo Could Trigger End of Free TV Game Broadcasts

Sunday Night Football
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The National Football League and Major League Baseball are urging the Supreme Court to grant broadcasters’ petition to hear their challenge to the legality of Aereo, the startup that features unauthorized streams of local broadcast signals.

After the TV networks filed a petition to the high court last month, the NFL and MLB filed an amicus brief last week arguing that if Aereo prevails, it would mean sports programming would likely migrate to cable. Broadcasters argue that Aereo undermines their ability to collect retransmission fees from cable and satellite operators.

“If copyright holders lose their exclusive retransmission licensing rights and the substantial benefits derived from those rights when they place programming on broadcast stations, those stations will become less attractive mediums for distributing copyrighted content,” the leagues said in their brief. “The option for copyright holders will be to move that content to paid cable networks (such as ESPN and TNT) where Aereo-like services cannot hijack and exploit their programming without authorization.”

The leagues noted the “important federal interest” in protecting over-the-air broadcasting.

The leagues collect about $100 million of the $300 million broadcasters receive from “compulsory” license fees paid by cable and satellite outlets, the brief stated, and also have an interest in the multi-billion dollar retransmission fees because networks use the money to purchase sports rights and other content.

The leagues also argued that Aereo puts the U.S. in violation of international treaties prohibiting the retransmission of broadcast signals over the Internet without consent of program or station owners. It also said that, given a 2nd Circuit Court of Appeals ruling, Aereo could create packages of sports programming for free while the leagues create such arrangements in exclusivity.

The brief was written by Robert Alan Garrett, Stephen M. Marsh and Brandon Boxler of Arnold & Porter in Washington.

“The court’s intervention is now necessary to restore clarity and certainty in this area and to prevent the unraveling of  marketplace built upon the licensing of rights rather than the expropriation of such rights through technological chicanery,” the brief states.

Aereo has argued that its service, with subscribers each assigned a remote antenna, is a legal private transmission and not a public performance in violation of the Copyright Act. It has yet to file a reply brief, which is now due on Dec. 12.

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  1. Doug Dingle says:

    Typically shortsighted and greedy response by the NFL and MLB.

    Maybe they missed the endless press reports of the number of people cutting the cord. Pay viewership is dropping monthly.

    Move to cable, lose viewership. Couldn’t happen to a more deserving group of self-serving fools.

  2. Burt Ward says:

    My television experience right now is from a DTV receiver, Hulu Plus, Netflix, and slingbox. I do not have umbilical based tv services such as cable or Dish. I’ve been using this now for several years and am satisfied since I’m not helping fund Al Qaeda through Al Jazeer TV. If Aereo ever came to my city, I’ll go with them. If professional sports went to cable only, that’s fine with me. Sure, I watch some of my favorite network prime time programs on my Slingbox so I guess I am owe the networks a re-trans fee for doing that. But whats the difference between me watching it in my home or watching it via slingbox at another location such as my lake cabin where its in a valley and there is no tv reception. The only reason I get 3g data service there is because the government owns several cabins on the lake for brass to say and that means they paid to have Verizon pop up a nice cell tower on one of the local hills. What is the difference between Aereo and Slingbox? I could hire someone to install and maintain the Slingbox device for me and it would be just like Aereo.

  3. doug price says:

    I think NFL and MLB have a great ideal, let the people who want to watch sport broadcast, pay for it. Those who don’t . . NOT.

  4. BRV Vassar says:

    I have learned to get fill my football needs with and I have not watched a Super Bowl live since 1997. It turns out that even though I followed football fervently since my father took me to Yankee Stadium to Giants football games when I was in grade school, the business of football (expansion team weakness, free agency) has not provided the reward to make the habit of spending 4-5 hours a week impossible to break. The NFL and MLB had better lobby hard for the continued practice of TV program bundling. If they had to rely on consumer subscriptions for their product, the stadiums won’t be the only venues that don’t sell out every game.

    I hope a threatened departure from free broadcast television will create opportunities for high school and local college teams to have their games replace what would be gone. I believe the pent up demand to watch local talent easily will nullify the calculated impact of team owners taking professional sports “private”.

  5. George says:

    These sports leagues make it sound as though they provide “free” entertainment over-the-air. HA! I’ve said it before – go ahead and keep on moving more of your programming to cable so I do not feel compelled to watch your commercials. I only watch what I can get over-the-air and won’t pay for commercial-filled programming.

  6. George says:

    From what I am witnessing, sports has been migrating to cable for YEARS. I see this as nothing more than a threat. Things ARE going to CHANGE. If the cable, TV and broadcasters are not careful, their businesses will be filed under the same category as physical music sales is now (new records and CDs).

  7. Likely just a threat. Positive news is the NFL & MLB know change is coming. Different is not always good; but Good is always different.

  8. Sam says:

    I would expect this from the NFL, but MLB? I’m surprised. Anyway, this is a non-argument. Aereo isn’t costing MLB or the NFL any licensing fees. I look forward to reading Aereo’s response.

  9. Mark says:

    OK. Go ahead and try. This is disingenuous and an incredibly empty threat.

  10. eric jackson says:

    I dare the NFL and MLB to start charging to watch their games. They will lose so much money so quickly, they’ll retreat with their tails between their legs within 4 weeks, much like they did with the refs.

  11. James says:

    So when I stream the New England Patriots over the air to my computer using an antenna, am I also “unauthorized”? If not, explain the difference. If so, the answer is simple, stop broadcasting over the air and lose access to the valuable public radio spectrum that the government granted you.

    If my local TV station is already paying the NFL for rights to transmit it over the air, why should Aereo be required to pay again when all it is doing is providing access to the already licensed over the air transmission from an antenna? Just think of the internet as a really long antenna cable.

    • Texas Cable Guy says:

      That’s the same argument the cable TV industry tried to use 50 years ago. The Supreme Court agreed with the cable industry because the then-current copyright law (Copyright Act of 1909) didn’t prohibit unauthorized carriage.
      Current laws (Copyright Act of 1976 and Cable Act of 1992) do indeed prohibit unauthorized carriage. Cable companies must obtain permission from broadcasters for their signals, and must pay copyright fees and retransmission-consent fees. Broadcasters are making millions from retransmission-consent fees today.

      Aereo claims that it doesn’t have to comply with these laws because it uses a separate antenna for each customer. Broadcasters and copyright owners have sued Aereo and its west-coast wannabe FilmOn X claiming that the separate-antenna argument is bogus. Pending lawsuits:

      NEW YORK: Plaintiffs v. Aereo
      District Court (New York Southern) ruled for Aereo.
      Appeals Court (Second Circuit 3-judge panel) upheld. Dissenting judge Denny Chin wrote a vigorous dissent.
      Appeals Court denied en banc rehearing.

      MASSACHUSETTS: Plaintiffs v. Aereo
      District Court (District of Massachusetts) ruled for Aereo.
      Appeals Court (First Circuit) pending.

      CALIFORNIA; Plaintiffs v. FilmOn X
      District Court (California Central) ruled for plaintiffs.
      Appeals Court (Ninth Circuit) pending.

      DISTRICT OF COLUMBIA: Plaintiffs v. FilmOn X
      District Court (District of Columbia) ruled for plaintiffs *AND* it enjoined FilmOn X from operating ANYWHERE in the USA (except in the three states under the jurisdiction of the Second Circuit).

      If the Ninth Circuit rules for plaintiffs, decisions of two Courts of Appeals will be in direct conflict. At that point, the Supreme Court will have to decide. Unless Congress steps in and revises the Copyright Act.

  12. Essentially, it sounds like the sports leagues are saying that “Aereo offering these games for free impedes our ability to offer these games for free.” Either the games are on free broadcast TV or they aren’t. They say that it’s going to cause games to migrate to cable, yet in this they are attempting to turn broadcast INTO cable. Never mind that MLB’s latest deal with “free” Fox actually moves some games to the non-free Fox Sport 1.

    This argument needs some elaboration; it’s disingenuous as-is.

  13. “features ‘unauthorized streams’ of local broadcast signals”

    editorializing much? whether or not they’re authorized is exactly the heart of the matter… the broadcast networks do just that — broadcast their signal, for free, over the air. aereo is just taking that signal and streaming it.

  14. Inigo says:

    Less baseball and football on TV would be awesome! I hope they pull their content from free broadcast. Tired of programs being cancelled because of sports.

  15. Fire Walker says:

    Local broadcasts of sports are already gone in Minneapolis. We have NHL, NBA, WNBA, MLB, NFL, and UoMN. Only ones broadcast are NFL and Basketball (rarely). And this is in spite of taxpayers paying for all their stadiums. And this is in spite oft them all sucking – except the Lynx. WNBA champs! W00t!

  16. I paid for last season, had to endure games being blacked out on a consistant basis, then they had the gall to try and charge even more money for the playoffs.

    Living in New England, I had to stream the game from the UK because the Fox antenna signal wouldn’t reach my house, even though I live less than a mile from the TV station.

    Don’t lie to the public. You already charge us a premium to watch your games.

  17. Greg says:

    They actually want to do this anyway and are using Aereo as an excuse (that is, a scapegoat) to try to deflect fan outrage for their doing it. The fans could put an end to this simply by boycotting all paid-access to sports on television, but far too many boys in men’s bodies can’t discipline themselves to tell the leagues and conference to go play with themselves.

  18. John Shaffer says:

    This is BS. They can’t afford to fill their substantially deep pockets with the same amount of advertising from the limited audience that cable would provide. This is a bluff and hopefully the court calls them on it.

    So tired of them stifling competition to keep their profits artificially high on the backs of consumers.

    • Doug White says:

      Hmmmmmm…. while I don’t believe their argument is BS, it’s hard to be on the side of a group of businesses that gouge the public as hard as MLB and the NFL do. It is going to be very interesting to see where this is all going in another 10 years, when anyone wearing Google glasses or the equivalent can let anyone else access their POV, whether watching TV or actually at a game (or a concert or play for that matter). We need a new model for copyright soon, the old one has been falling apart for the past 15 years and looks to be fading fast…..

      • Dave Aiello says:

        A bit misleading in that both MLB and NFL networks charge significant money for all access subscriptions

        Over history -the increased value that team owners and leagues have received in having access to these public airwaves -increased their value and private franchise worth.

        Massive amounts of public tax dollars go into building (private) sports stadiums, benefiting owners and leagues

        In fact, I would go so far to say that, if any team within any sport league, (including colleges) takes any form of public subsidy–then free, public, access should be mandatory -for all teams in that league.

        Since a cities’ sports team is effectively a monopoly form of entertainment -I would say their broadcast (over free tv ) -could also be seen as a “public good” and maintained as such.

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