The battle of Boston continues. Just more than two weeks after Aereo slammed Hearst-owned WCVB-TV for its July 10 copyright suit and injunction request against the Barry Diller-backed streaming video service, the plaintiff has returned fire. In a 12-page reply (read it here) filed Friday in federal court in Massachusetts, the ABC affiliate says Aereo “engages in a technological shell game to avoid the plain wording of the Copyright Act.” Last week’s filing once again asks the court to grant a preliminary injunction shutting Aereo down in Boston, where it debuted at the end of May. In its August 7 opposition to the initial complaint, Aereo said that it is not infringing anyone’s copyright but simply providing an antenna and remote DVR service to customers for broadcasts that consumers already get for free. The streaming service also noted that the claims of WCVB-TV were very similar in nature and kind to the unsuccessful NYC-based attempt by broadcasters that the Second Circuit affirmed in April. That case is now back in District Court while Aereo has expanded from its first site in NYC to Boston, Atlanta, Utah, Chicago and Houston, Dallas and Miami next month.
The Boston station isn’t having any of it. “In an effort to avoid the clear language of the Copyright Act, Aereo has concocted an inefficient technology designed solely to fit within the strictures of a wrongly- decided, heavily-criticized, non-binding decision that only partially considered the issues presented here. This Court should reject such a maneuver,” WCVB-TV lawyers stress in last week’s reply. They go on in the filing to target what they see as Aereo’s innate contradictions in its own legal argument. “Aereo’s efforts to avoid the reproduction and distribution clauses of the Copyright Act reveal the true nature of its claims. On the one hand, Aereo claims it does not infringe on WCVB’s reproduction rights because Aereo’s subscribers ‘provide the volitional conduct that creates the copy of the program they select.’ Under this theory, Aereo is providing only technology and its subscribers make the copies. Dancing on the head of a pin, Aereo then argues that it does not violate WCVB’s distribution rights because it only streams content; it does not provide a “material object,” i.e., a copy. Aereo cannot have it both ways,” the reply notes. This back and forth for the much litigate Aereo and its latest nemesis will likely go on for a while. Meanwhile, as the legal name-calling in Boston grinds on, Aereo in NYC is getting some unlikely support. As the carriage dispute between CBS and Time Warner Cable has dragged on, the cable distributor has been recommending that NYC subscribers who want to watch Under The Dome or other CBS shows take a look at Aereo, which is now offering a first month-free deal. Strange bedfellows to put it mildly.
James Smeallie, Brian Leary, Elizabeth Mitchell and Joshua Krumholz of Boston firm Holland & Knight LLP are representing WCVB-TV in the case. Matthew Berntsen, Christopher Dillon, Sheryl Koval Garko, Richard D. Hosp, Mark S. Puzella and Frank E. Scherkenbach of Boston’s Fush & Richardson PC represent Aereo.