The Aereo Case Moves Forward

There was a major recent development in the ongoing litigation against Aereo.  Aereo, for those just learning about this case, is a service that allows for users to rebroadcast their television shows to a laptop or tablet (this post contains more details on how the service operates, as well as legal analysis).  In addition, Aereo does not pay retransmission fees that other broadcasters (like cable and satellite companies) have to pay.  These broadcasters sued Aereo for copyright infringement, with Aereo arguing that their technology is not a “public performance” and thus does not violate copyright law.  After losing at the Second Circuit Court of Appeals, these broadcasters appealed to the Supreme Court.  Aereo recently announced that they embraced the idea of a Supreme Court case in their response to the broadcaster’s appeal.

This response is odd because normally parties that win at the lower court level argue against the Supreme Court hearing the appeal.  The reason for that is pretty straightforward: if you’ve won at the lower level, you don’t want to risk having that victory potentially erased on appeal.  Aereo, however, makes it very clear in their response that they are not agreeing with the plaintiffs’ arguments as stated in their writ of certiorari (the legal motion asking for Supreme Court review of a lower court’s ruling).  In fact, Aereo spends the entire response arguing why the Second Circuit’s findings were correct.  Their response allows them to tweak the “question presented” section in a more favorable manner and to make their arguments again (and emphasize why the Second Circuit found in Aereo’s favor in the first place).    

Why does Aereo agree to allow for a Supreme Court appeal?  Well, as the Ars article cited at the beginning points out, Aereo benefits from a clear Supreme Court ruling extending Cablevision’s holding (where the use of a DVR was not held to be a “public performance”).  The Second Circuit case is not the only court case that the American Broadcasting Companies is running against Aereo.  The plaintiffs probably also hope that drawing out the litigation will bankrupt Aereo and discourage similar companies from entering the fray.  Aereo probably hopes that a clear Supreme Court ruling removes that danger entirely.

Aereo also worries about other companies getting to the Supreme Court before them (specifically FilmOn, who has a pending appeal waiting in the Ninth Circuit).  FilmOn provides live streaming of TV, with the recent addition of an app/antenna service (similar to Aereo’s) that allow the user to stream FilmOn feeds to their mobile devices.  FilmOn’s case in the Central District of California resulted in an injunction against their mobile retransmission service.  The Ninth Circuit Court of Appeals upholding that injunction against FilmOn would result in a circuit split, and allow the cable and television companies suing both companies to include both in their complaint to the Supreme Court (who might have to take the case to resolve the split).  Aereo hopes that their clear win in the Second Circuit will allow them to present a stronger case to the Supreme Court.

All that remains now is how the Supreme Court case goes for Aereo.  



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