There’s an old adage in the law: When the facts are against you argue the law; when the law is against you argue the facts; when they’re both against you pound the table. Or, as the broadcasters suing Aereo seem to be contemplating, you can try shopping your case around to other courts in hopes of a better outcome.
Hoping to head off a legal war of attrition, in which the broadcasters sue it in each new market it enters hoping courts in those jurisdictions would see the case differently from the Second Circuit, Aereo on Monday filed a motion with the district court in New York seeking a declaratory judgment against CBS that Aereo’s technology does not infringe the broadcasters’ copyrights.
The move is largely a tactical maneuver but an important one. By striking first, Aereo is hoping to seize control of the docket and discourage courts in other jurisdictions from hearing cases brought against it by the broadcasters. At the very least, a pending motion for a nationwide declaratory judgment would establish a procedural predicate for Aereo to seek summary dismissal of any case brought against it in another court.
From Monday’s motion:
Because Aereo’s declaratory judgment counterclaims and CBS’s copyright infringement claims seek nationwide relief and are not limited to the New York market, any further suit in Boston or otherwise would be duplicative of the [New York] actions, including the relief the parties are seeking in those actions.
It may be that the broadcasters’ threats to sue Aereo in multiple jurisdictions is just bluster (see comment by CBS’s Leslie Moonves here, and by Comcast/NBC’s Brian Roberts here). But it’s also a sign of how thoroughly boxed in they feel by the result in New York. The networks have asked for en banc review of the Second Circuit’s ruling by full court, but it’s highly unlikely that the full court would overturn its own precedent in the Cablevision case by reversing a ruling to affirm that precedent.
The broadcasters have had better luck in the Ninth Circuit in a case against Aereokiller but Aereo itself has avoided the Ninth Circuit and would not be subject to any injunction issued there. So unless the broadcasters can keep the legal issue alive somewhere that Aereo is doing business, the case could well die in New York.
Clearly, Aereo isn’t taking any chances that the broadcasters won’t try.