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

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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