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Summary:

Aereo, which sells $8 a month subscriptions to watch TV on mobile devices, has responded to lawsuits from broadcasters by filing an unorthodox suit of its own this week. The suit may be for PR purposes more than legal ones.

Castle on Aereo TV
photo: Aereo

Aereo, the controversial service that beams over-the-air TV to mobile devices, is going on legal offense against the broadcasters that are trying to shut it down. On Monday, Aereo asked the U.S. District Court in Manhattan for an order stating that it does not infringe on the broadcasters’ copyright.

The move comes as Aereo, which recently won a major appeals court ruling on nearly the same issue in New York, prepares to offer its service in Boston and 22 other markets as soon as this month. CBS and other broadcasters have vowed to sue to stop Aereo in those new markets, a threat that appears to have led it to file the new court action. (The new filing, reported by AllThingsD, refers to recent public statements and Twitter feeds by CBS executives, including one that says “we’ll sue”).

So what exactly is the meaning of Aereo’s new lawsuit? Here’s what one copyright expert familiar with the issue had to say:

Aereo’s decision to file a separate declaratory judgment action at this stage is unorthodox. They’ve prevailed on a preliminary injunction motion at the district and circuit court level — which means that both the Southern District and the 2d Circuit have ruled they are likely to succeed on the merits — so it’s unusual to seek a declaratory judgment on the same issues.

Recall that the appeals court decision from last month already protects Aereo for the immediate future in the U.S. Second District, a territory that covers the states of New York, Vermont and Connecticut. This means that the new declaratory action Aereo is seeking will not really change any facts on the ground but could give the company another favorable verdict — but not one that will determine its fate in Boston (which is in the First Circuit) or any of the other legal jurisdictions where Aereo plans to open shop.

The most likely explanation, then, is that the move is part of the increasingly pitched PR battle between Aereo and the broadcasters who, in another recent appeal, accused the upstart of creating “havoc” and “massive disruption” in the television industry. The broadcasters have also threatened to pull their signals altogether and distribute their channels, including Fox and ABC, only on pay TV.

Aereo, for its part, argues that its technology, which assigns every subscriber a personal antenna, is akin to private viewing through a DVR system.  The company’s CEO, Chet Kanojia, has accused the broadcasters of extracting exorbitant fees by forcing viewers to accept cable bundles stuffed with channels they don’t want to watch.

Aereo’s new lawsuit, therefore, gives it a way to gain the upper hand on the media message (for a short time at least) – and possibly pick up some additional legal language from a judge who has taken the company’s side in the past.

In the bigger picture, the Aereo fight is part of a great game over the future of the TV industry. Aereo, which is backed by a major investment from media mogul Barry Diller, has also been the subject of acquisition rumors by satellite provider Dish. Broadcasters fear that an alliance between the two companies could provide an end-run around the existing system that requires cable and satellite providers to pay for use of the over-the-air signals.

The final outcome could well end up at the Supreme Court given a current split between the courts in New York and a district court in California, which shut down a similar service to Aereo last year. In the meantime, it’s possible that a patchwork of decisions could result in Aereo being legal in half the country and forbidden in the other half.

In another recent development, the four major sports leagues have joined the anti-Aereo chorus by filing court papers to support the broadcasters’ request that a full panel of the Second Circuit reconsider its decision. The NFL, NBA, NHL and Major League Baseball argue that the appeals court was wrong to consider Aereo a “private” transmission like singing in the shower:

An individual who sings a copyrighted lyric in the shower engages in a private performance […] A commercial service (like Aereo) that retransmits the broadcast of a copyrighted television program to thousands of paying subscribers at the same time is not in any way comparable.

Here’s a copy of Aereo’s new lawsuit:

Aereo Complaint for Declaratory Judgment – FINAL FILED


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  1. Aereo has a standard line that they’re not doing retransmissions. Now they should take it a little further and say they don’t even exist.

    Maybe they can convince a judge it’s true.

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  2. I think cable fees are outrageous, but the solution is not to pay them. Some content like sports and HBO cost a fortune to make. The right and fair solution for the consumer is to make a decision whether the price is okay not insist on using some weasely way to avoid paying.

    Let’s imagine that Aereo is as wildly successful as their investors seem to believe it will be. The production companies and sports leagues will be getting dramatically less revenue. That’s a victory for the consumer, right? Wrong. There will be dramatically less spent on producing the content. “Game of Thrones” will start to look like some YouTube thing taped with a smartphone. (Not that there’s anything wrong with that, but I watch HBO to see great production values not actors succeeding in adversity.)

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    1. @Rich It’s no different than me renting space on someone else’s roof who gets a better signal to get my free, over the air TV channels.

      @mtpdmblo Aereo is not offering HBO, ESPN, or any other subscriber-supported channels. They are offering free, over the air TV channels, which are ad-supported. The networks will still make their money like they do now, maybe even more if they come to their senses and embrace the technology. They are not going to prevent HBO or ESPN or anyone else from spending money on production because they have nothing to do with what Aereo is doing.

      The networks just want it all: ad fees AND retransmission fees AND whatever other fees and other money they can squeeze from us and from advertisers. Screw them all.

      @Morgan Hear hear.

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      1. Armchair Lawyer Thursday, May 9, 2013

        @Shenan, actually it is a public performance (and thus copyright infringement) if you were to transmit from someone else’s roof to your residence. (section 2 defining publicly) you cannot transmit from one place to another place. It is legal to transmit within one place (your home), but not legal to transmit from one place (your neighbor) to another place (your home). This clause is what I imagine will be Aereo’s downfall (like Zediva).

        See: http://www.copyright.gov/title17/92chap1.html

        To perform or display a work “publicly” means—

        (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

        (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

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  3. Morgan Rauch Tuesday, May 7, 2013

    Anything the major sports oligarchies are against, I’m for.

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  4. A similar battle over rights to ‘over the air’ broadcast signals and retransmission is being fought in the UK (and similarly lost by the broadcasters) – http://www.stevebrownlie.com/2013/broadcasters-caught-living-in-the-past-as-tv-catchup-wins-ruling/

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  5. Dave Fowler Tuesday, July 2, 2013

    TV broadcasters originally received their funding from advertising. Aereo puts their ads into homes that are too far out to receive signal over the air. Why would you pay for Aereo if you could use an antenna.This increases the households that receive the broadcasters ads. Broadcasters need to quit bitching and be happy that their circulation has been increased. Advertising slots have increased from 1 minute when I was a kid to 5 minutes now. These guys are cleaning up. GREED, GREED, GREED. I pay for 40 channels I never watch to view 4 that I do. It’s time for something new and consumer friendly.

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