Cablevision has told the Supreme Court that while it agrees with broadcasters that Aereo's service is an illegal violation of copyright, it says broadcasters' cure is "worse than the disease" because it would jeopardize cloud-based storage.
That came in an amicus brief filed in the Supreme Court, which on April 22 will hear oral arguments in the broadcasters appeal of a Second Circuit Court of Appeals decision denying an injunction against Aereo, which delivers TV station signals and recording capability to subscribers over the Internet.
"Instead of focusing narrowly on the lawfulness of the Aereo service, the broadcasters appear to be asking the Supreme Court to undo decades of federal copyright law precedent and overturn the legal foundation on which cloud-based technologies have flourished," said Cablevision. "If those arguments are adopted, such a reversal of legal precedent could stifle innovation and future cloud-based technologies."
The same Second Circuit that denied the Aereo injunction is the one that ruled that Cablevision's provision of copies of programs to its subs via remote DVR functionality was not a performance in violation of copyright.
In their opening brief to the Supreme Court last week, broadcasters said that the Second Circuit had indeed erred, but that their argument would not rain on the cloud storage regime.
"It is simply not plausible that a Congress so determined to guard against both existing technical workarounds and the risk that new technology might render the statute obsolete would have viewed the use of thousands of little antennas as making any difference," it said. "The Second Circuit’s contrary conclusion is flawed at every turn." But they also drew a distinction between Cablevision content, for which a copyright payment had already been made, and Aereo, which does not pay a copyright fee for what it says is simply providing remote access to free TV and authorized home recording. "[A] ruling against Aereo [would not] be a ruling against cloud services, which generally involve only the storage of and later access to content that the user has already legally obtained."
Cablevision did not see it that way. “While we believe the Aereo service is illegal, in the broadcasters’ myopic view the cure is worse than the disease," the company said in its brief. "Taken to its logical conclusion, the broadcasters’ reckless strategy could halt innovation in cloud services in the United States and ultimately imperil consumers’ access to current and future technologies."
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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.
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