Aereo to Supremes: We're Heirs to Rabbit Ears & Betamax

Aereo filed its opening brief in the Supreme Court late Wednesday, responding to broadcasters, who got the first shot in, while framing its service as the natural inheritor of free TV and home taping rights.

"The evolution of technology from a black-and-white television connected to a rabbit-ear antenna and a Betamax to a high-definition television connected to a digital antenna and DVR has not changed those core principles," which is that "any consumer with an antenna is entitled to receive, watch, and make a personal recording of that content."

Broadcasters told the court that Aereo was using a technological work-around to provide a performance while attempting to avoid copyright payments. But Aereo says copyright is a limited grant, and applies to a public performance, not its one-to-one transmissions to individuals that result in individual private performances controlled by its subscribers, not Aereo.

"Because the performance embodied in each transmission from Aereo’s equipment—the user’s playing of her recording—is available only to the individual user who created that recording, the performance is private, not public," Aereo tells the court. It points out that what users are accessing is their own copy of a broadcast transmission, not the transmission itself.

Broadcasters have branded Aereo a Rube Goldberg contraption, a reference to the cartoonist who depicted elaborate devices performing simple tasks. Aereo defines Rube Goldberg as "a clever way to take advantage of existing laws" and takes ownership of it.

"[D]esigning technologies to comply with the copyright laws is precisely what companies should do. If petitioners believe a technology that operates within existing laws to allow individual consumers to watch television shows petitioners have offered for free is causing them economic harm, they are entitled to ask Congress to change those laws. But 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."

The company says a finding for Aereo will not threaten VOD, but a finding against it could jeopardize cloud storage.

Aereo also said that the court should not hold Aereo liable in any event since it is users, not Aereo, that create the performance. "Aereo’s users—not Aereo—create, play, and transmit their recordings of broadcast content and therefore 'perform' within the meaning of the Copyright Act," it says. "Because...nothing goes into or comes out of Aereo’s equipment except in response to a user’s commands, Aereo cannot be directly liable for infringement," it says.

"We have every confidence that the Court will validate and preserve a consumer's right to access local over-the-air television using an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice," said Aereo CEO and founder Chet Kanojia following the brief's filing.

“The broadcasters are asking the Court to deny consumers the ability to use the cloud to access a more modern-day television antenna and DVR," he said. “If the broadcasters succeed, the consequences to American consumers and the cloud industry are chilling."

Aereo's arguments boil down to the following.

A. "The transmissions from Aereo’s equipment are not 'public' performances.

B. "Aereo’s users transmit a new performance from a recording of the broadcast, not the same performance embodied in the broadcast.

C. "The playing of a copy is a performance distinct from the performance from which the copy was made.

D. "Aereo’s users do not receive the performances embodied in broadcasters’ transmissions.

E. "There is no justification for disregarding the fact that all transmissions using Aereo’s equipment are derived from individual recordings.

F."Rejection of petitioners’ misreading of the statute would not affect the copyright liability of video-on-demand systems.

G. "Aereo does not meet the statutory standard for direct infringement.

H. "Aereo’s provision of remote equipment to consumers does not render it directly liable for infringement

I. "The government’s 'integrated system' argument is unpersuasive.

J. "The supposed analogy between Aereo and cable systems has no merit.

K. "Any statutory ambiguity should be resolved against liability

L. "Nothing in the Copyright Act suggests that Congress would have wanted petitioners to be able to extract copyright royalties here."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.