If you thought the legal battle between Aereo and the broadcasters at the Supreme Court would take a break for the holidays, think again. Today, ABC, CBS, Fox, NBC and several other broadcasters fired back at the Barry Diller-back streaming service’s December 15 brief to meet their October 11 petition to the nation’s highest court. “The need for this Court’s intervention is great, and the time for this Court’s intervention is now. Industry participants cannot and will not wait much longer before responding to the distortions that the law of the nation’s largest market is creating,” says the reply brief filed today with the Supreme Court (read it here). And let’s just say, there’s really only one thing the two sides agree on. “Aereo’s response brief gets a great deal wrong, but it gets one important thing right: This exceptionally important case warrants this Court’s immediate review,” also notes the 16-page brief. Otherwise, as has so often been the case in the various legal fronts and venues that this has been playing itself out in in the past two years, Aereo and the broadcasters have very little in common – even the terms of the debate.
“Aereo devotes substantial effort to attempting to recast itself as something it plainly is not—a mere supplier of equipment that individuals may use to enhance their ‘private reception of broadcast television.’ Make no mistake about it. Aereo is not a hardware supplier. It offers a subscription service,” the dense reply brief says. “Accordingly, this Court should reject Aereo’s effort to rewrite the question presented in a manner that portrays Aereo as an equipment supplier. Aereo cannot deny that it has thousands of paid subscribers, all of whom can use Aereo to ‘watch live TV’—indeed, all of whom can watch the Super Bowl simultaneously,” it also notes. Despite the harsh words in the brief and the game changer any decision by the Supreme Court could represent, this isn’t going to be argued any time soon. In fact, a decision on when arguments themselves will even be heard will likely not be made well into the New Year with the Court’s packed schedule.
Disney, CBS, NBCUniversal, WNET, Fox, and Univision escalated the legal battle to the nation’s highest court with a Petition for Writ of Certiorari this Fall after suffering losses in lower venues. Specifically, 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.” In July of this year, Fox started making noises that it could take the case to the U.S. Supreme Court for a further ruling. With the broadcasters making that big move in the Fall, Aereo having surprised everyone with accepting the challenge and now today’s response to their response, this seems set to be a true death match in tone and intent – and we won’t be able to look away.
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