Fox sues to shut down Aereo copycat over TV streaming

Broadcasters have been battling for months to shut down Aereo, a service that uses dime-size antennas to stream TV to Apple (s aapl) devices. Now, the fight has taken a strange new twist. [Note: this post has been updated with BarryDriller comments]

On Friday, Fox Networks filed a new suit against a start-up called (a play on the name of TV mogul and Aereo investor Barry Diller).  BarryDriller charges $5.95 a month to supply personal antennas that let subscribers “scan the airwaves and tune the antenna to receive whichever broadcast station signal the subscriber chooses.”

Neither Fox nor Aereo is amused. Fox claims that BarryDriller is infringing the copyright of The Simpsons, Raising Hope and Glee and violating its trademark. The broadcaster adds that the start-ups use of personal antennas is not defense:

“It simply does not matter whether BarryDriller uses one big antenna to receive Plaintiffs’ broadcasts and retransmit them to subscribers, or millions of antennas, “so tiny [one] fits on the tips of your finger,” as Defendants claim it does. No amount of technological gimmickry by Defendants changes the fundamental principle of copyright law ….”

The lawsuit mirrors one that Fox and other broadcasters are pursuing against Aereo. That case also turns on a legal loophole based on whether Aereo’s one-antenna-to-one-person transmission system means it is not broadcasting to the public. In a surprise ruling last month, a New York judge awarded round one to Aereo by refusing to grant the broadcasters a preliminary injunction.

There are a handful of differences between Aereo and BarryDriller:

  • BarryDriller is targeting the Los Angeles market unlike Aereo which is for now available only in New York
  • BarryDriller says it is willing to offer broadcasters a retransmission fee similar to what cable operators pay
  • Its website suggests that BarryDriller viewer need an external antenna to receive TV on any device (Aereo transmits directly to Apple products like Safari, the iPad and iPhone)

[Update: BarryDriller founder David Alki wrote to say that his service is actually in four major markets and that it will add three more next week.

Alki is also the founder of FilmON, a TV streaming service that the entertainment industry smacked with an injunction in 2010.]

Aereo’s Barry Diller responded to his rival’s launch last week by telling the Wall Street Journal, “I had hoped that if they steal my name they’d do it for something more provocative.” Aereo executives said they hadn’t heard of the service and added, “It is unfortunate that they appear determined to try to trade on Aereo and its board members’ successes and reputation.”

Here’s Fox’s complaint:

Fox v BarryDriller