The broadcast networks and PBS have told the Supreme Court that Aereo is engaging in theft on a massive scale and must be stopped.
The broadcasters say that a ruling against Aereo would not threaten services like Hulu, Netflix and Amazon, which pay for their copyrighted content, nor would it threaten cloud storage, since that is storage and access to content that has also already been paid for.
That came in a petitioner's brief to the court filed Feb. 24. They also say Aereo's defense that it is simply a remote equipment provider has already been rejected by Congress.
The broadcasters have sued Aereo, saying it is illegally distributing content without having paid for it.
The Supreme Court is hearing their appeal of the Second Circuit Court of Appeals decision not to enjoin Aereo. That court, citing its own decision in the Cablevision case upholding remote DVR access to content, said Aereo was likely to win on the merits. The broadcasters want the High Court to reverse that injunction.
Other, lower courts, have upheld injunctions, setting up the court split the Supremes will be looking to resolve. No lower court has yet weighed in on the underlying merits of the case, but they are holding off until the Supreme Court weighs in, and when it does that will be the controlling decision to the degree that it reaches those merits.
In their brief, which was due Monday, they said that while a decision against Aereo would not pose a problem, a victory for Aereo would be "deeply problematic."
They argue Aereo would be "stealing" copyright holders' public performance right. Aereo says it is not a performance, but simply remote access—via the Internet, for a fee—to antennas receiveing free signals subs are entitled to without payment, and to recording capability that is also a viewers right thanks to the Betamax decision upholding fair use home recording, or in this case home away from home recording via remote DVRs.
That "theft," say the broadcasters, "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. That would give broadcasters little choice but to reconsider the quality and quantity of programs they broadcast for free over the air.
But they say the Transmit Clause is clear, and that the use of tiny antennas and servers does not change the fact that the company is transmitting an over-the-air performance of broadcast works without permission or payment.
Congress [did not] want the infringement question to turn on technical specifications—that is why it extended the public-performance right to “any device or process," ABC says.
The question the Supreme Court says it will answer is: "Whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet." Obviously the answer implicates the future of online video distribution. Broadcasters say that answer is clearly yes.
The Supreme Court will be hearing oral arguments April 22.
Petitioners include ABC, CBS, NBC, Fox, their attendant studio arms, and PBS.
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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.