Aereo Thursday told the Supreme Court that it should agree to hear broadcasters' appeal of a lower court decision not to block its service, though it disagrees with how the broadcasters framed the appeal.
In its response to the petition by the major commercial networks and noncommercial broadcasters, Aereo says the appeals court got it right and that Aereo does not transmit a public performance, but will let the High Court try to put a stop to further broadcasters' litigation.
"The essential bargain that petitioners made to obtain, for free, public spectrum worth billions of dollars was that, once they have broadcast their programming, consumers have a right to receive and to view that programming using an antenna and to copy that programming for their personal use," Aereo told the court.
“We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court. While the law is clear and the Second Circuit Court of Appeals and two different federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter," said Aereo CEO Chet Kanojia. "We want this resolved on the merits rather than through a wasteful war of attrition."
Aereo may not agree with broadcasters arguing that it is delivering a public performance without paying the legally required copyright fee -- "there is no district court finding that Aereo, as opposed to Aereo’s users, transmits anything within the meaning of the Copyright Act" -- but it acknowledges that not all the courts see it that way.
"The Second Circuit rejected petitioners’ claim for a preliminary injunction on the merits, as did the federal district court in Massachusetts," Aereo noted in its reply to the court Thursday. "Petitioners note, however, that two district courts have ruled against one of Aereo’s purported competitors, FilmOn. Because of the extensive evidentiary record and careful fact-finding by the district court below, this case (and not the cases involving FilmOn) provides an appropriate vehicle for this Court to resolve this issue. Therefore, although Aereo disagrees with petitioners’ presentation in their petition, it does agree that review is warranted now, on this established factual record."
Aereo told the court that the issue it needs to resolve is rooted in the technological change that allow remote access to free TV station signals.
"Instead of purchasing a home DVR, an antenna for over-the-air broadcasts, and a mediashifting 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," it said. "Because of rapid technological development, this case raises an important issue of law that is better resolved by this Court now than later."
A source with one of the law firms involved in the appeals said they expected the High Court to mull the petition at its January conference, and perhaps decide by next month whether to take the appeal.
Also on Thursday, Cablevision Systems asserted, in the form of a whitepaper, that Aereo’s service violates copyright laws, but also blasted broadcasters for tying the legal underpinnings of the MSO’s remote-storage DVR service into their petition of the High Court, claiming that doing so could “cripple cloud-based innovation in the U.S.” Fellow cable operator Charter Communications didn’t weigh in on the overall legality of Aereo, but did issue a statement Thursday supporting Cablevision’s position on the RS-DVR matter.