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Media Institute: Aereo Is Illegal Contrivance Masquerading As Disruptive Innovation

The Media Institute has filed a friend-of-the-court brief with the Supreme Court backing broadcasters in their fight with Aereo.

The First Amendment think tank, which is backed by major media companies, recruited Duke University Law visiting professor and institute advisor Rodney Smolla to make the argument that Aereo is simply using a technological contrivance"--banks of remote off-air antennas and servers for recording programming--that serves no purpose other than to provide legal cover so that Aereo can "traffic in copyrighted content without paying for it."

"If a picture tells a thousand words, a thousand antennas tell the picture," the brief says, "Aereo's bizarre engineering, employing thousands of antennas to do the work of one, reveals to all what is really going on."

Smolla also argues that the Aereo model threatens to undercut broadcasters business models, and not through the disruptive innovation that is a threat to any settled business model, but by illegal activity in the guise of that innovation.

"New technologies often disrupt existing economic and legal arrangements," the brief says. "When the disruption is the product of ingenious invention or entrepreneurial pluck that does not run afoul of settled property, contractual, statutory, or constitutional rights, the victor in the marketplace is entitled to the spoils. In the marketplace, however, there are not just winners and losers. There are also those who play by the rules, and those who do not. No rewards are justified for those who disrupt settled economic and legal arrangements by invading the legal rights of others and mocking the rule of law."

The case is "American Broadcasting Companies, Inc. et al., V. Aereoa, FKA Bamboon Labs, Inc."  That "et al." includes all the Big Four networks as well as their studios, as well as PBS.

Broadcasters filed their brief earlier this week. Petitions in support, like Media Institute's, are due by Monday.

Aereo gets to weigh in March 26, with its friend of the court briefs due April 2. Oral argument is April 22.