UPDATED 5:29 PM: Cablevision has issued a statement on the filing: “We are dismayed by the broadcasters’ brazen attempt, in a case about Aereo, to go after the legal underpinning of all cloud-based services, everything from digital lockers to Cablevision’s own RS-DVR service. Given that there are much narrower — and more persuasive — legal grounds for invalidating Aereo that do not threaten such underpinnings, the broadcasters’ approach can only be seen as a willful attempt to stifle innovation. If Aereo ends up prevailing, it will serve the broadcasters right.”
PREVIOUSLY: Disney, CBS, NBCUniversal, WNET, Fox, and Univision just made the filing. It’s a Petition for Writ of Certiorari asking the justices to review a ruling by the U.S. Courts of Appeals in New York. That court rejected broadcasters’ plea to shut Aereo during a trial to determine whether the service infringes on their copyrights when it streams their over-the-air programming to subscribers without paying a license fee. “Today’s filing underscores our resolve to see justice done,” a Fox spokesperson says. “Make no mistake, Aereo is stealing our broadcast signal.” Aereo says that it will “respond, as appropriate, in due course.” But the company has argued that consumers have the right to watch broadcasters’ free transmissions, and it simply leases the antennas and equipment people need to take advantage of that right. There’s no guarantee that the high court will consider the case to be worth the justices time, at least not yet. “With no conflicting Circuit Court decisions and this not being a state vs state legal battle, the only reason for the Supreme Court to take this case is if it deems the issue of ‘national importance’,” says BTIG analyst Rich Greenfield — who has been enthusiastic about Aereo. As a result he says it would be “quite a stretch” for the petition to fly, “let alone for broadcasters to win.” Yesterday the Circuit Court in Boston rejected an effort by broadcasters to block Aereo, similar to the one that was rejected in New York. Word of a possible appeal to the Supreme Court began to spread on Wednesday.
The writ tells the Supreme Court justices that their intervention is “urgently needed.” Aereo “has begun to attract subscribers with its low fees. Certain cable and satellite companies have responded by threatening to use the decision below as a road map for reengineering their own delivery systems so they too can retransmit broadcast signals without obtaining the broadcasters’ permission. And copycat services have sprung up that, like Aereo, transmit live broadcast television over the Internet without obtaining permission or paying compensation.” It specifically cites Alki David’s FilmOn X, which it says “operates essentially identically to Aereo.” The filing also notes that the D.C. District Court
entered an injunction against FilmOn X “that applies nationwide except for the Second Circuit” in New York. Last month Aereo CEO Chet Kanojia told an investment conference that there’s never been an opportunity to look at the FilmOnX system in depth so “we don’t know what the technology is.”
Broadcasters say that this “should have been a straightforward case. There is no dispute that Aereo has developed a business model around the massive, for-profit exploitation of the copyrighted works of others. Its competitive advantage in that business model derives from the fact that its competitors pay fees for the commercial retransmission of those copyrighted works, while Aereo does not.”
But the law also gives consumers the right to use an antenna to watch broadcast TV for free, and to use products like the Slingbox to stream the signals if they want to see shows on a tablet or smartphone. Aereo says that its process is legal because it offers a “private” performance — one that’s controlled by consumers just as though they had the equipment in their homes. Broadcasters say that Aereo introduces enough changes to make its transmissions “public” performances that require the copyright owner’s approval. They add that Aereo’s system — which provides a separate, dime-sized antenna for each subscriber — is designed to thwart copyright laws “with Rube-Goldberg devices that offer no functional improvement” over traditional pay TV services where cable and satellite companies have to pay to retransmit broadcast signals.