SCOTUS agrees to hear Aereo case

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U.S. Supreme CourtThe Supreme Court issued an order 1/10 granting cert in the appeal of American Broadcasting Companies, Inc., et al., v. Aereo, Inc.  The other companies with ABC include 21st Century Fox Inc., NBCUniversal and CBS Corp.


“We believe that Aereo’s business model, and similar offerings that operate on the same principle, are built on stealing the creative content of others,” CBS said in a statement. “We are pleased that our case will be heard and we look forward to having our day in court.”

Said other broadcasters involved in another copyright infringement suit against Aereo in NYC (WNET-TV, Fox Television Stations, 20th Century Fox, WPIX-TV, Univision and PBS): “We are pleased the Court has agreed to hear this important case.  We are confident the Court will recognize that this has never been about stifling new video distribution technologies, but has always been about stopping a copyright violator who redistributes television programming without permission or compensation.”

Said NAB President and CEO Gordon Smith: “NAB is pleased the Supreme Court will review this critically important case, and we are optimistic that broadcasters will prevail. Enshrined in the Constitution is the concept that content creators deserve to be protected from product theft. We look forward to the resolution of this case.”

Said Aereo CEO and Founder Chet Kanojia in his own statement: “We said from the beginning that it was our hope that this case would be decided on the merits and not through a wasteful war of attrition. We look forward to presenting our case to the Supreme Court and we have every confidence that the Court will validate and preserve a consumer’s right to access local over-the-air television with an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice.

This case is critically important not only to Aereo, but to the entire cloud computing and cloud storage industry.  The landmark Second Circuit decision in Cablevision provided much needed clarity for the cloud industry and as a result, helped foster massive investment, growth and innovation in the sector.  The challenges outlined in the broadcasters’ filing make clear that they are using Aereo as a proxy to attack Cablevision itself and thus, undermine a critical foundation of the cloud computing and storage industry.

We believe that consumers have a right to use an antenna to access over-the-air television and to make personal recordings of those broadcasts.  The broadcasters are asking the Court to deny consumers the ability to use the cloud to access a more modern-day television antenna and DVR.  If the broadcasters succeed, the consequences to consumers and the cloud industry are chilling.

We remain unwavering in our confidence that Aereo’s technology falls squarely within the law and our team will continue to work hard to provide our consumers with best-in-class technology that delights and adds meaningful value to their lives.”

Aereo streams local broadcasters’ content over the internet to subscribers via tiny antennas that are “each owned by individual subscribers.”

In July, one of the plaintiffs, Fox, indicated that appealing to the high court was one of its options after the 2nd Circuit Court of Appeals refused to reconsider the case. The appellate court had upheld a lower court decision where U.S. District Judge Alison Nathan denied broadcasters’ efforts to obtain a preliminary injunction to stop Aereo.

Broadcasters so far lost in the 2nd Circuit, but have won legal actions in Los Angeles and Washington district courts to stop Film On X, a similar startup that streams via remote antennas.

RBR-TVBR observation: As we’ve said, the Supreme Court almost had to step in when numerous circuit courts issue conflicting opinions. When a conflict of interpretations arises from differing interpretations of the same law issued by different federal circuit courts of appeals, it’s a “circuit split”. The Supreme Court ruling, when it comes, will also affect Aereo-like services FilmOn X and Aereokiller. DC-based Judge Rosemary Collyer’s order on 9/5/13 to pull the plug on FilmOn X everywhere but New York, Connecticut and Vermont—states covered by the U.S. Court of Appeals for the Second Circuit. “The Court’s decision conflicts with the law of the Second Circuit under Aereo II,” said Collyer in her first ruling, agreeing to extend the injunction to everywhere except the 2nd Circuit.

Back in April of last year, News Corp. President/COO Chase Carey raised the possibility of becoming a subscription cable service if Aereo wins in the courts. Haim Saban, Univision Chairman, said that the network was also considering becoming a subscription cable service.

“Simply put, we believe that Aereo is pirating broadcasters’ content,” said Saban. “As Chase Carey said, no broadcaster can afford to sit idly by and allow Aereo’s theft to continue unchecked. To serve our community, we need to protect our product and revenue streams and therefore we too are considering all of our options — including converting to pay TV.  With Hispanics watching over-the-air news and entertainment at twice the rate of non-Hispanics, being forced to convert to cable would significantly impact this community.”

As we’ve noted, these bold statements were serious, but also an attempt to gain attention from lawmakers and viewers to their predicament while they continue to battle Aereo. Shifting a broadcast network to cable would be a very sticky mess. Broadcasters groups own hundreds of their own TV stations, which rely on the free-to-air model getting ratings and selling ads. Without network programming, that model falls apart. While they certainly want Aereo to close up shop, if the networks and O&O stations from say Fox, Univision and more go to cable, we’d see quite an uproar from the broadcast groups. It’s important that the High Court realizes what’s at stake here with a fully-legal Aereo in operation. Aereo is redistributing copyrighted programming to mass subscribers without permission. We don’t care if they’re doing it with mirrors or tin cans with string attached. It is illegally retransmitting content over the internet.


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Carl has been with RBR-TVBR since 1997 and is currently Managing Director/Senior Editor. Residing in Northern Virginia, he covers the business of broadcasting, advertising, programming, new media and engineering. He’s also done a great deal of interviews for the company and handles our ever-growing stable of bylined columnists.

1 COMMENT

  1. Carl;

    Go back and look up the Sony Betamax case circa 1984 SCOTUS. The plaintiffs are partially the same and they got their asses handed to them. Back then, they wanted to hold Sony responsible for stealing their copyrighted material.

    This is the march of technology. There are winners and losers but there should be no role for the government in picking them. If these clowns want to take advantage of the public airwaves to sell advertising then we should be able to receive the broadcasts at our technological convenience. Otherwise, the SHOULD take their stuff and charge directly for it. But they shouldn’t be able to use the government to have it both ways.

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