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Friends of Aereo Weigh In

CCIA Files Amicus Brief Backing Online Service Broadcasters Mainstain is Illegal Transmission 10/26/2012 10:23 AM Eastern
Friends of Aereo are lining up in court to back its service for delivering broadcast TV to iPhones and other screens.

Public Knowledge earlier signaled its plans to file an amicus (friend of the court) brief supporting the Barry Diller-backed service and the Computer and Communications Industry Association and Internet Association have already filed a brief with the U.S. Court of Appeals for the Second Circuit backing Aereo and opposing broadcasters' petition for an injunction from that court.

The crux of Aereo's argument is that "where a transmission is made to a single consumer using a unique copy available only to that consumer, it is not a performance to the public,' and therefore does not infringe any exclusive right of public performance."

The crux of broadcasters' counter argument is that "the unauthorized retransmission of over-the-air television broadcasts, through any medium, violates the public performance right set forth in the Copyright Act."

A New York District Court denied a broadcaster request for an injunction in July, saying Aereo was essentially analogous to the Cablevisions' remote DVR functionality, which the Second Circuit upheld in the Cartoon Network vs. Cablevision case.

Broadcasters, including ABC, CBS, NBC and noncommercial WNET, filed a petition with the Second Circuit Court of Appeals Sept. 14 saying the lower court was off base and they should be granted the injunction. Aereo then countered that argument in an Oct. 19 filing, saying that if broadcasters' complaint is upheld, "every consumer who watches live programming through her DVR to enable pause and rewind functionality will be at risk of liability for an infringing public performance." That led to the amicus brief filings in support of Aereo this week, which were due at the end of day Friday, Oct. 26.

CCIA membership comprises computer companies, Web companies and mobile broadband and satellite service providers including Microsoft, Google, DISH, and Sprint. Internet Association members include Amazon.com, Facebook and IAC, which is headed by Aereo backer Barry Diller.

CCIA and the Internet Association say their members have invested in cloud computing based on the Second Circuit's ruling in Cartoon Net/Cablevision case that a transmission made by a user from a remote DVR to themselves is a private, not public performance.

Aereo provides remote off-the-air antennas associated with individual subs. The antennas allow for distribution of those TV station signals -- including DVR functionality -- to those subs' computer screens and mobile devices.

CCIA and the Internet Association oppose the legal effort to block Aereo, but also say Congress, not the courts, is the best place to decide the issue.

"TV broadcasters are essentially complaining that Aereo is disrupting their existing business model," said CCIA President Ed Black explaining the group's support. "However, in the past, the Supreme Court has recognized that it is best for Congress to decide whether or not it is desirable to expand protections of copyright owners to respond to changes in technology. We agree that Congress, rather than the court system, would have more flexibility to address TV broadcasters complaints without creating uncertainty for Internet innovators and investors.

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