UPDATE: Aereo CEO Chet Kanojia has sent a message to “users and supporters” with a link to today’s letter to the court that outlines the company’s new position. “From the beginning, it has been our mission to build a lawful technology that would provide consumers with more choice and alternatives in how they watch television,” he says. The Supreme Court decision against Aereo resulted in “a challenging journey for our team, but your support has continued to lift and propel us forward. We remain committed to building great technologies that create real, meaningful alternatives for consumers.”
PREVIOUS, 4:14 PM: The Supreme Court‘s recent ruling against Aereo may have left an opening for it to stay in business — but now as a kind of cable service — its lawyers said today in a joint letter with broadcasters outlining their views to the U.S. District Court in New York. (Find it here.) The high court concluded that the streaming service was so similar to cable companies, which are required to negotiate a deal if they want to carry broadcasters’ programming, that it could not simply pluck signals from the airwaves without paying. That’s significant, Aereo says, because the classification also means that it’s “now entitled” to work out a deal — which broadcasters, in turn, must negotiate in good faith. Indeed, Aereo says, its eligibility for what’s known as a compulsory license “must be decided on an immediate basis or [its] survival as a company will be in jeopardy.” It suspended service shortly after the Supreme Court decision.
Broadcasters say that Aereo, having lost once, is now raising “a brand-new defense” that it “never before pled (much less litigated).”
At issue is whether the District Court will lift a stay that allowed Aereo to remain in business while the case made its way to the Supreme Court. Broadcasters want it lifted so they can collect damages from Aereo’s infringement of their copyrights — a two-year period during which they say they “suffered irreparable harm.” Aereo wants the stay to remain in place since the Supreme Court decision could “eliminate the need to litigate.” It also says that the ruling “did nothing to prohibit” its DVR-like program recording and playback service.
Aereo faces additional hurdles even if the District Court agrees with its view. The FCC also might have to agree to define Aereo as a cable operator for it to qualify for the compulsory license — and it would have to be granted by the U.S. Copyright Office, which “has been very reluctant to consider Internet-based companies as eligible for that license,” Guggenheim Partners’ Paul Gallant says. And here’s the kicker: Even if broadcasters agreed to negotiate a deal “they need not actually sell signals to Aereo,” he adds.