Aereo to Broadcasters: Go Ahead, Take the Case to Supreme Court

Aereo Judge
Oliver Munday

Aereo on Thursday said that it would not oppose broadcasters’ petition to the Supreme Court to review rulings in the start up streaming service’s favor, declaring that it was ready for the justices to resolve the question of whether its digital streams of station signals are legal.

“We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court,” Aereo founder and CEO Chet Kanojia said in a statement. “While the law is clear and the Second Circuit Court of Appeals and two different federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter. We want this resolved on the merits rather than through a wasteful war of attrition.”

Broadcasters are challenging the legality of Aereo, launched in March, 2012, contending that the startup illegally streams broadcast signals in New York and other markets where it has expanded.

Aereo contends that its service — in which subscribers are each assigned dime-size remote antennas — is a private home use and therefore not a violation of public performance provisions of the Copyright Act.

In October, after their failure to put a stop to Aereo in the Second Circuit, the broadcast networks and other stations petitioned the Supreme Court to review the case, arguing that their business models were under threat. They argued that Aereo undercut their ability to collect retransmission payments from cable and satellite providers, which have reportedly been developing Aereo-like services based on what happens in the courts.

In its filing with the Supreme Court, 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.”

Aereo told the high court that they believed it was “appropriate” for the Supreme Court to review the case to “affirm” the Second Circuit decision, noting that broadcasters “have shown every intention of pursuing litigation in every circuit in the nation.”

Aereo did, however, challenge the way that broadcasters’ have framed the case, that the startup was retransmitting broadcasts to “thousands of paid subscribers.”

“The essential bargain that petitioners made to obtain, for free, public spectrum worth billions of dollars was that, once they have broadcast their programming, consumers have a right to receive and view that programming using an antenna and to copy that programming for their personal use,” Aereo said.

Aereo’s streams of broadcast programs are not live, but close to it.  It points out that when a subscriber tunes their assigned antenna to watch broadcast TV, an individual copy is recorded to a remote hard drive disk, and, after a delay of at least six seconds, the viewers can then watch the feed on an array of digital devices. Aereo contends that its users, not the company, have “volitional control” over the system.

That is a key point, as Aereo has cited a 2008 Second Circuit decision in making its case that its service is legal. The appellate court back then upheld the legality of Cablevision’s offering of a remote DVR to its subscribers.

“Even if two ysers choose to view the same television program at the same time — as they often will — they will never share an antenna, data stream or digital recording,” Aereo said. “The same would be true if two neighbors on a street were using individual rooftop antennas and home DVRs.”

A key legal question in the interpretation of a clause in the Copyright Act that defines public performances as ones that “transmit” a copyrighted work to the public, “by means of any device or process.” Broadcasters contend that the clause makes clear that what Aereo is doing is infringing. They also cite another part of the clause that says that viewers of a public performance can be watching it “in the same place or in separate places and at the same time or at difference times.”

But Aereo cites the 2008 Cablevision case, in which the Second Circuit, in interpreting the clause, saw a distinction in the “existence and use” of individual copies. ” Aereo noted that the statute “specifies that a performance is ‘to the public’ so long as ‘members of the public [are] capable of receiving the performance.” Otherwise, Aereo contends, viewers would face liability for their personal copies “because multiple consumers each wanted their own personal copies of the same work.”

Although Aereo has won legal victories in the Second Circuit and in a Boston federal court, federal judges in Los Angeles and Washington have ruled against a similar service, Film On X. The Ninth Circuit is currently weighing an appeal from Film On X, and if it decides in the broadcasters’ favor, it could set up a circuit-split that would make it more likely that the Supreme Court would grant review.

Nevertheless, in its Supreme Court filing, Aereo says that were the Ninth Circuit to decide in broadcasters’ favor, “the resulting decision would not reflect nearly so detailed a factual record as this case.” It included a footnote noting that Film On X was found in contempt of court by a D.C. federal judge for launching in Boston, in defiance of her order.

Aereo is represented in the filing by a team led by David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, as well as Seth Greenstein of Constantine Cannon.

Broadcasters had no immediate comment.