Cablevision has no trouble hammering broadcasters hard over their signals when the issue of retransmission consent is on the docket. But the company sang a much different tune last week, making a staunch defense of those broadcast signals in the Aereo TV case.
Broadcasters are suing Aereo, the Barry Diller-backed subscription service that provides mobile users access to timeshiftable Web versions of broadcast signals in New York City for a monthly subscription.
Aereo says it is simply providing remote access to a TV antenna, which viewers are entitled to, along with the ability to record and play back that signal, which they say their customers are also entitled to per the Sony Betamax case that established a right to home videotaping. Broadcasters say that a loss in this case could lead to a crumbling of their entire business model.
The broadcasting argument suggests that Aereo is trying to retransmit signals without compensation in violation of copyright law. A New York district court denied broadcasters’ request for a temporary injunction against Aereo while that court decides the case, prompting those broadcasters to seek a reversal of that decision by the Second Circuit Court of Appeals.
The case has already made some strange bedfellows, linking Fox with PBS in the suit. Now, enter Cablevision, which last week filed a brief backing broadcasters.
Cablevision’s name already appears frequently in the Aereo case file. In 2008, the same Second Circuit Court of Appeals handed Cablevision a signi! cant victory when it overturned a lower court and said the company was allowed to provide remote DVR functionality to its customers by using massive servers at its head-ends to record programming instead of giving them expensive set-top boxes with hard-disk recorders.
Cablevision says it doesn’t think its court victory over programmers in the remote DVR case should extend to Aereo’s model. Aereo says it too is providing remote antenna farms combined with DVR functionality and need not pay for the privilege.
In a brief to the Second Circuit supporting broadcasters’ efforts to get that lower court decision reversed, the cable operator said Aereo “seeks an expansion of Cablevision’s public-performance holding that would extend it far beyond the case’s facts, beyond its rationale, and in contravention of settled industry expectations.”
The applicability of the Cablevision decision appears central to the current case. In denying the injunction, the district court found no appreciable difference between Aereo and Cablevision’s remote DVR. In fact, the court relied heavily on that precedent, with the judge saying that without that decision, the broadcasterplaintiffs would likely have prevailed in their request for a preliminary injunction.
Cablevision argues that even with that decision, Aereo should be stopped.
“Contrary to the district court’s holding, Aereo’s system is nothing like—much less ‘materially identical’ to—the [Cablevision remote DVR system] for copyright purposes,” Cablevision said last week. “Unlike Aereo, Cablevision operates a licensed cable system that retransmits content to subscribers pursuant to agreements with content providers. In addition to and separate from providing that licensed cable system, Cablevision also offers technologies that enable its subscribers to record television programs for later viewing.” By contrast, it says, “Aereo’s hard-drive copies perform a role that is neither operationally meaningful nor independent from Aereo’s real-time transmission service.”
Cablevision already has some experience in taking public issue with an over-the-top video service invoking its court victory in hopes of securing its own.
Last July, when studios were battling online movie service, Zediva, Cablevision also weighed in to argue that while its DVR represents a customer accessing a show he or she had chosen to record remotely, Zediva was instead operating more like a video-on-demand service that chooses individual movies to make available for a price.
Aereo, Cablevision argued, is operating like a cable operator, receiving over-the-air signals and retransmitting them for a fee. Cablevision obviously has a player’s interests in not having to compete with someone who gets their content gratis, while cable operators have to pay significantly for it.
Broadcasters are certainly hoping their case takes a similar route to the one against Zediva. A judge ultimately enjoined Zediva from operating, finding little merit in its arguments.
In October 2011, Zediva agreed to pay the studios $1.8 million and promptly closed up shop.
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