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Summary:

Broadcasters, alarmed by Aereo’s technology that relays their TV signals, want to rush the issue to the Supreme Court. Their petition is likely premature.

U.S. Supreme Court
photo: flickr / dbking

In a sign of the growing strategic significance of Aereo, a service that streams over-the-air TV for $8 a month, broadcasters are reportedly set to ask the Supreme Court to rule whether the start-up violates copyright.

According to Variety, the broadcasters are moving to put a petition before the Court by October 15 in the hopes that the Justices will hear the case this term, which runs from October till June. (Update: the broadcaster filed the petition as expected).

The petition may be a long shot, however, given that the Court already has a chock-a-block docket with cases ranging from abortion to campaign finance. Also, a California appeals court has yet to issue an anticipated ruling on streaming technology.

The California case turns on many of the same questions that led the influential Second Circuit Court of Appeals in New York to rule that Aereo is legal. A lower court in California came to the opposite conclusion — but the appeals court of that state is still considering the issue.

“Unless there is an actual split [..] it would be unlikely that a review-worthy case would reach the Court in the coming term — October through June.  That would mean the fall of 2014 at the earliest,” wrote Lyle Dennison, a veteran SCOTUS Blog reporter, in a recent email.

In other words, the Supreme Court will likely wait to hear the petition until next time around.

In the meantime, Aereo and the broadcasters will continue to skirmish on a region by region level. Aereo recently won a ruling in Boston, which opens up the service to New England, while the broadcasters had a victory in a related case in Washington, DC. This week, the TV companies sued in Utah — the outcome will determine whether they can shut down Aereo in seven more western states, in addition to the ones they’ve blacked out already (see the Disco Project’s helpful map).

The legal issue turns on whether Aereo’s technology, which rents a personal tiny antenna to every subscriber, is a private recording or instead an illegal public performance.

Update: Aereo declined to comment on the broadcasters’ petition.

  1. I think it’s important to note (well, important to me, since I live in DC) that the “related case” in DC has some key differences that Aereo will likely point out in argument.

    The case in DC was against FilmOn.com (formerly known as BarryDriller.com and Aereokiller… stay classy FilmOn) which although similar to Aereo, seems to have a key difference. Aereo’s success in courts so far has focused on the fact that Aereo is not re-broadcasting a public steam of the television content, it is providing a private link. Judges supporting Aereo have noted that its service, in which users rent both an antenna and DVR, is no different if the users borrowed the antenna and DVR to use in their own homes (which is legal). The only difference between that traditional approach and Aereo is the length of the cable between the DVR and the TV.

    The injunction against FilmOn, however, was successful (though FilmOn has chosen to ignore it) because each user of the site is NOT provided their own private antenna. If you go to FilmOn.com right now, you can start viewing a public rebroadcast of local stations (depending on your location), without subscribing… (You get a DVR if you pay, but viewing live is free and ad-supported).

    It’s important to note the key difference between the public rebroadcast FilmOn provides versus the private link Aereo gives you. The cases are indeed related, but the argument hinges on that distinction.

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