That would be a problem, the network says in a brief filed today, because “Millions of Americans still rely on free over-the-air broadcasts to receive television programming.” What’s more, “broadcast television not only continues to carry the majority of the country’s most popular shows, but also remains a critically important source of local and national news.” Broadcasters would have little choice but to “reconsider the quality and quantity of the programs they broadcast for free over the air,” ABC asserts, because a Supreme Court ruling that deems Aereo to be legal “would launch a race by cable and satellite companies to develop competing methods to capture copyrighted content and re-sell it without paying for the right to do so.” Aereo says that its subscription streaming service merely leases to consumers the antennas and other technologies that they already can use to watch over-the-air television for free. But ABC counters that Aereo violates a part of the Copyright Act of 1976 called the “Transmit Clause.” It gives a copyright owner an exclusive right to “perform the work publicly,” even with new technologies. The clause “was added to overturn Supreme Court rulings adopting the very ‘equipment provider’ defense Aereo is advancing,” ABC says. Congress didn’t want decisions “to turn on technical specifications — that is why it extended the public-performance right to ‘any device or process’.” The Supreme Court will hear oral arguments on April 22.
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