Aereo may have agreed with broadcasters late last year that the best venue for their ongoing legal “war of attrition” is the Supreme Court. But as today’s response brief (read it here) to the plaintiffs reveals, that’s all the two sides agree on in this case. “This Court should not rewrite the Copyright Act in an effort to protect petitioners from lawful and logical advancements in technology or from the economic consequences of their transmitting works for free over the public airwaves,” said the Barry Diller-backed subscription streaming service in its filing today at the SCOTUS. “The ‘one-to-one’ transmissions from Aereo’s equipment – individual transmissions from personal recordings created from data received by individual antennas – do not constitute ‘public’ performances,” the dense, 100-page brief also noted one of the broadcasters’ primary complaints about the company. With the high court scheduled to hear oral arguments on the case on late next month, Aereo now must send in an amicus curiae brief of its own by April 2.
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“Under the Copyright Act, petitioners have no right to royalties at all for retransmissions of their content within the original broadcast market,” Aereo also said in today’s response. “Congress exempted even cable systems from any obligation to compensate copyright holders when they retransmit broadcast programming already available to cable subscribers over the air. Petitioners’ analysis flows from a false narrative.” Additionally Aereo warned the Court today against the threat that agreeing with the broadcasters could result in for the cloud computing industry and not falling prey to “petitioners’ hyperbolic warnings” that broadcast TV could be severely threatened.
“We look forward to presenting our case to the Supreme Court on April 22, and we have every hope and confidence that the Court will continue validate and preserve a consumer’s right to use lawful technology innovations like Aereo,” said CEO Chet Kanojia after the company had filed its brief today.
Following almost continuous legal actions since Aereo’s February 2012 launch, Disney, CBS, NBCUniversal, WNET, Fox, and Univision took the plunge on October 11 last year and petitioned the SCOTUS to review an April 1, 2013 ruling by the U.S. Court of Appeals in New York. That ruling upheld a previous District Court decision and rejected the broadcasters’ request for a preliminary injunction against the tech company. Even though the matter is still before the lower court, the Justices agreed on January 10 to hear the case. At the core of the various suits in various jurisdictions and this potentially game-changing case, the broadcasters claim that Aereo violates the Copyright Law and infringes on their copyrights by streaming their over-the-air signals without licenses or compensation. On the other side, Aereo says that it simply leases out antennas and technology that consumers can already use to watch broadcast TV for free.
In their February 24 brief (read it here), which Aereo was responding today, ABC and other broadcasters bluntly said: “Aereo is in the business of retransmitting performances of copyrighted works to the public. Nothing about the Rube Goldberg-like contrivance through which it does so provides even the slightest basis for concluding otherwise.” As CBS’ Les Moonves and Fox’s Chase Carey have threatened in the past, the broadcaster’s brief raised the specter of reconsidering “the quality and quantity of the programs they broadcast for free over the air” if Aereo isn’t stopped.
Since the broadcasters filed their brief last month, the Obama Administration has filed a brief of its own supporting the broadcasters and a motion to argue before the Court. Cablevision, SAG-AFTRA, Time Warner and Warner Bros Entertainment, the NFL and MLB are among others who have also filed with the court over the case. In the case of Cablevision, whose successful 2008 case against the broadcasters over remote storage DVRs has been much cited by Aereo, the company slammed both the streaming service and the broadcasters in its March 3 amicus brief. With today’s filing by Aereo, and the other briefs in this much watched case, expect a full house in D.C. in late April.
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