The Aereo Case: Do Its Patent Applications Give It Legal Cover?

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In the broadcasters’ suit against Aereo, in which the startup won the first round, there was only one point of fact in dispute: whether its dime-size antennas actually function independently (see What the Judge in the Aereo Case Didn’t Rule On).

U.S. District Court Judge Alison Nathan agreed with Aereo’s position, rejecting the broadcasters’ assertion that the individual antennas act as a single, big array.

“Based on the evidence at this stage of the proceedings, the Court finds that Aereo’s antennas function independently,” she wrote. “That is to say, each antenna separately receives the incoming broadcast signal, rather than functioning collectively with the other antennas or with the assistance of the shared metal substructure.”

Aereo doesn’t always permanently dedicate physical antennas to individual users; those may be allocated dynamically at different times (click on the diagram at left from one of its patent filings). However, Nathan ruled, “That Aereo users may ’share’ resources like antennas by using them at different times does not affect this analysis, as it remains clear that the copies Aereo’s system makes are unique for each user and are not ’shared.’”

Furthermore, she noted that several resources in Cablevision Systems’ RS-DVR are also “shared,” including the servers and, “most significantly, the unlicensed signal from which the unique copies were made.” (She means Cablevision’s RS-DVR was not licensed for time-shifting use from the networks.)

Last fall, Aereo applied for four patents on its system (see Aereo’s Patent Play). Those appear to bolster its case, according to a patent expert cited by ReadWriteWeb’s Gina Smith, because they describe the Aereo system using individual antennas for signal capture.

“If in fact the four patent applications… accurately describe Aereo’s deployed technology in New York City, then these patent apps could give Aereo a leg up,” intellectual-property expert Tom Ewing told ReadWriteWeb.

The technical side of Aero’s legal defense may or may not be rock-solid. In any event, in their appeal the broadcasters will probably revise their legal arguments around the fact that Aereo isn’t licensed to retransmit their TV signals.

In their original case, the broadcasters argued that the Cablevision RS-DVR decision didn’t apply to Aereo because the former involved time-shifting. Judge Nathan noted that the Second Circuit’s ruling did not cite time-shifting at all in its analysis of whether the RS-DVR was a “public performance.”

So expect a new legal tack from the broadcasters. Note that Judge Nathan specifically said her decision did not address certain points: “First, the Court need not, and does not, accept Aereo’s position that the creation of any fixed copy from which a transmission is made always defeats a claim for a violation of the public performance right. This position would eviscerate the transmit clause given the ease of making reproductions before transmitting digital data, and [the] Cablevision [RS-DVR decision] does not require such a far sweep.”

In addition, she wrote, the court “need not reach the issue of whether Aereo escapes liability because it is ‘the consumer, not Aereo, who makes the transmissions that Plaintiffs complain of.’”


Programming Note: Hear from Aereo CEO Chet Kanojia at TV’s Cloud Power, Sept. 13 in New York City. Click here for more info: