Major sports go to bat for TV v. Aereo


MIB Sports RadioThe National Football League and Major League Baseball filed a brief with the Supreme Court strongly backing local television in its dispute with Aereo over unauthorized redistribution of broadcast programming.

The leagues say the lower court got it wrong when it failed by split decision to shut Aereo down until it obtains permission to retransmit broadcast signals.

They noted that their own business models are compromised by Aereo. They wrote, “The National Football League (“NFL”) and Major League Baseball (“MLB”) (collectively, the “Leagues”) are unincorporated associations whose member clubs own and operate professional football and baseball teams, respectively. The Leagues have developed successful businesses licensing rights to televise their games and to retransmit those copyrighted telecasts over various media, both domestically and internationally. Their business models rely on a well-established, statutorily-created legal regime that requires commercial services to obtain copyright licenses in order to retransmit programming on broadcast television stations.”

The earlier Aereo decision is damaging, they stated. “The decision below significantly alters that legal regime and unsettles the marketplace for licensing rights to broadcast television programming. A divided panel of the Second Circuit held that copyright licenses are unnecessary when a service uses “mini antennas” and individual subscriber-associated copies of programs to make broadcast retransmissions. This judicially created loophole allows such services to avoid the force of the Leagues’ copyrights in broadcasts of their games, eroding the value of one of the Leagues’ most important assets.”

The leagues argue that in addition to damaging the existing order of business on local TV, it damages agreements with other distributors in the cable and satellite arenas.

They further argue that the narrow, and they say incorrect, decision on Aereo contributes a great deal of uncertainty in the copyright area, and that the Supreme Court must restore clarity.

And that clarity must be in favor of the broadcast position, at risk of limiting the availability of valuable programming on broadcast television. They wrote, “The decision below places broadcast television at a significant disadvantage to non-broadcast cable networks in terms of its ability to acquire valuable programming. That, in turn, adversely impacts the more than eleven million households in the United States that do not subscribe to cable or satellite and thus do not receive non-broadcast cable networks.”

Finally, they added that the earlier Aereo ruling places the US in violation of international obligations, citing a free trade agreement with Australia as just one example. Under that agreement, it states that “neither party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders, if any, of the content of the signal and of the signal.” They say it threatens the credibility of the US.