Aereo asks Supreme Court to take copyright case, stop broadcasters “war of attrition”

Aereo, a TV streaming service that is locked in a massive legal battle with the country’s broadcasters, asked the Supreme Court on Thursday to accept a legal challenge filed by the broadcasters in October that could decide copyright questions surrounding the service once and for all.

Aereo’s decision to ask the Supreme Court to take the case is a bold gesture: the startup could instead have argued that it was too soon for the country’s highest court to hear the broadcasters’ petition, especially as there is ongoing, unresolved litigation over streaming TV in the lower courts.

But as set out in its brief (embedded below), Aereo argues that the court should rule on the case now in part because the big broadcasters, including Fox, NBC, ABC and CBS, are drowning the startup in litigation costs:

“[The broadcasters] have signaled their intention to wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business,” writes Aereo, which is now streaming local TV in about 20 different cities for $8 to $12 a month through personal antennas.

There is a lot at stake in the case, which pits powerful players of the traditional TV industry against Aereo and others who want to break the so-called bundle model, in which viewers are force fed large ¬†and expensive packages of channels, many of which they don’t watch.

The central legal issue turns on copyright law, and whether Aereo is akin to watching a personal recording via a remote DVR unit (which is legal) or if it is instead an illegal re-transmission of the broadcasters’ signal. The case has also attracted the attention of sports leagues, with the NFL and Major League Baseball filing in support of the broadcasters.

Aereo argues that its technology, which provides a tiny personal antenna to every subscriber, is akin a remote DVR case called Cablevision in which the US Second Circuit Court of Appeals ruled in 2008 that the Copyright Act does not apply if a person is watching a personal, discrete transmission. In April, the same court in New York ruled that the same reasoning applied to Aereo — giving the company the green light to expand operations.

In its new filing, Aereo repeats the individual transmission argument, and compares itself to someone renting antennas on a hill:

If a landowner offered space on a hilltop where individuals could place a conventional antenna, no one would argue that the land- owner was engaged in a public performance, even if hundreds of individuals placed individual antennas there and watched the same World Series game.

The broadcasters, by contrast, have argued that the New York court got it wrong, and that the Copyright Act should apply to the underlying show — not the individual streaming transmission.

It’s hard to say if the Supreme Court will accept the case. The court is well into its term, which lasts until about May, and its docket is mostly full already; but, for now, it’s still adding new cases to the schedule.

Aereo is also urging the court to consider the facts of the case as they relate to Aereo specifically — and not to consider legal issues related Film On, a would-be streaming clone launched by eccentric billionaire Alki David, that a California court shut down in late 2012.

Finally, Aereo is framing the outcome of the case as important to the success of still-emerging cloud-based entertainment technologies, and consumers’ ability to access them at low cost:

“Instead of purchasing a home DVR, an antenna for over-the-air broadcasts, and a media- shifting device (such as a Slingbox) to transmit those signals to Internet-connected devices, a consumer can purchase access to functionally equivalent Aereo equipment for a fraction of that cost,” its filing states.

The filing is below with key parts underlined.

Aereo Cert Petition Response Brief Final (Filed 12-12-13)

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