Pro football and baseball have warned the Supreme Court that if Aereo is allowed to deliver and package TV station signals without paying copyright fees for the programming, the leagues will likely take their ball and go home, "home" being pay channels where they can be sure to get compensated and where their own packages of games can't be trumped by a service that doesn't pay.
In an amicus brief with the court in support of a broadcaster challenge to Aereo, the NFL and Major League Baseball spelled it out clearly, putting an extra point on its brief back in November asking the court to take the appeal.
Plenty of football and baseball have already moved to national and regional cable sports nets, but the leagues argued that flight could become a stampede if the court rules in Aereo's favor.
"If program owners, including the leagues, lose the substantial benefits derived from retransmission licensing when they place programming on broadcast stations, such stations will become less attractive media for distributing copyrighted content," the leagues told the court. "The obvious alternative for program owners will be to move more of that content to non-broadcast networks, where Aereo-like services cannot exploit such content without authorization. Thus, if upheld, the Second Circuit’s decision ultimately may deprive viewers of popular programming that is now freely available on over-the-air broadcast television."
The NFL points out that the games Aereo can package, for free, are even better than the packages the NFL offers to those who pay for the privilege.
"For example," it says, "beginning next season, the NFL has licensed Verizon to provide its customers with smartphone access to NFL telecasts available locally off-air. In return, Verizon pays the NFL a substantial licensing fee. That fee does not include the right to offer the NFL telecasts on tablets; the NFL has licensed that right to its broadcast partners beginning next season, subject to various conditions. Under the decision below, Aereo-like services can offer NFL telecasts from local and distant markets on both smartphones and tablets, regardless of whether their subscribers are customers of Verizon or one of its competitors."
Aereo and its backers will weigh in with briefs beginning March 26. The FCC is scheduled to hear oral argument in the case on April 22.
In an e-mail to subs, Aereo founder and CEO Chet Kanojia said last week that they have "a fundamental right to watch over-the-air broadcast television via a modern antenna and to record copies for their personal use," and that the company is "unwavering in our belief that Aereo's technology falls squarely within the law."
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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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