Just more than two months to the day after broadcasters petitioned the Supreme Court to overturn a denied injunction against the Barry Diller-backed streaming service, Aereo today responded with an unexpected battle cry of “bring it on”. “We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court. While the law is clear and the Second Circuit Court of Appeals and two different federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter”, said Aereo CEO Chet Kanojia today as the company filed a brief (read it here) with the Court. “We want this resolved on the merits rather than through a wasteful war of attrition”. Since Aereo’s 2011 launch, broadcasters have insisted in various jurisdictions and legal actions that the company is breaking the law by transmitting their shows to its Internet subscribers without paying a license fee. Today’s 31-page response and lack of objection to the broadcaster’s petition now raises the stakes to a winner-take-all proposition.
“Because of the extensive evidentiary record and careful fact-finding by the district court below, this case (and not the cases involving FilmOn) provides an appropriate vehicle for this Court to resolve this issue. Therefore, although Aereo disagrees with petitioners’ presentation in their petition, it does agree that review is warranted now, on this established factual record,” today’s brief says. “The need to litigate multiple cases has not only imposed a direct financial burden on Aereo but also created uncertainty that undermines Aereo’s efforts to expand its footprint and further develop its business. The risk of protracted and unnecessary litigation warrants this Court’s resolving the legality of Aereo’s system at the earliest practicable time,” it adds.
The response brief was first due November 11 but the company was granted an extension until today. Now the next stage in this potential boardsweeper is whether or not the Supreme Court will actually hear the case. With SCOTUS’ busy schedule, a decision is not expected until well into the new year.
After suffering losses in lower venues, Disney, CBS, NBCUniversal, WNET, Fox, and Univision escalated the legal battle to the nation’s highest court on October 11 when they filed a Petition for Writ of Certiorari. The broadcasters want SCOTUS to review an April 1 ruling by the U.S. Courts of Appeals in New York that rejected their request for a preliminary injunction against Aereo. That ruling arose out of a prior defeat on the same matter in District Court back in July 2012. Writing for the Appeals court majority this spring, Judge Christopher Droney said that Aereo’s transmissions “are not ‘public performances’ of the Plaintiffs’ copyrighted works.” Obviously unhappy with that result, Fox said in July that it might take the case to the U.S. Supreme Court for a further ruling. The network did just that.