They’ve petitioned the Ninth Circuit Court of Appeals for an “en banc” review in the Aereo case. The move comes after the networks including ABC, CBS and NBC unsuccessfully petitioned the court to overturn a lower-court order denying a preliminary injunction that would have put Aereo out of business.
Aereo, Barry Diller’s streaming service that allows subscribers to receive and record programs over the air, has won a key court ruling 4/1. The U.S. Court of Appeals for the Second Circuit in New York found that a lawsuit brought before it by broadcast networks arguing that Aereo’s service is illegal, should be thrown out.
The networks originally sued Aereo 3/12, claiming that it infringed copyrights by capturing their over-the-air signals and retransmitting the programming to subscribers on computers and smartphones without paying for the rights. The networks argued that Aereo would devalue their programming and cut viewership, jeopardizing revenue from advertisers and pay-TV providers. Aereo allows its viewers to skip commercials, like Dish’s AutoHop service.
According to a Hollywood Reporter story, the en banc petition was filed 4/15, giving reasons for a fuller review:
“A recent split decision of this Court raises a question of exceptional importance; it effectively overturns a congressional mandate that is the foundation for much of the current system for delivery of television programming. The majority opinion in WNET v. Aereo, Inc., guts Congress’s decision in 1976 to treat all services that retransmit broadcast programming to the public as being engaged in ‘public performances’ and thus needing licenses from the copyright owners of the shows. Unless reversed, that decision will wreak commercial havoc by allowing new and existing distributors to design around this license requirement and profit from the delivery of copyrighted programming while paying nothing for it.”
RBR-TVBR observation: This will likely go to the Supreme Court, either way. If Aereo wins, then the broadcasters may make good on their recent threats to pull their on-air signals and go to pay cable. We’re sure Aereo will be profitable relaying home shopping channels to their subscribers. Hey, all the abandoned licenses will make it that much easier for the wireless industry to complete its spectrum grab.
This is the kind of thing that can happen when a non-expert entity — and remember, the courts are generalists — have to rule on a highly technical matter. We hope at some point that one of them finally gets it right for good, or else it’s next stop, Capitol Hill.