As expected, broadcasters Friday asked the Supreme Court to decide "Whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet."
Broadcasters say Aereo does just that. Aereo counters that it is not a public performance but remote, private, access to free over-the-air signals.
Broadcasters are asking the court to overturn a Second Circuit denial of an injunction against Aereo. "The Second Circuit’s decision is already transforming the industry and threatening the very fundamentals of broadcast television," the broadcasters argue in the petition. "This Court’s intervention is urgently needed."
"We will respond, as appropriate, in due course," said Aereo spokesperson Virginia Lam of the broadcasters' latest court move.
The petition gives it to the Second Circuit with both barrels, saying its decision, which suggested Aereo had the law on its side, is "irreconcilable with statutory text, congressional intent, and common sense" and calls its reasoning "nonsensical" and "irreconcilable" with the "plain text of the Copyright Act or Congress’ manifest Intent…"
"Only by looking at the case through the distorting lens of Cablevision and its conflation of performance and transmission could the Second Circuit give a green light to Aereo's business model."
Cablevision's name already appears frequently in the Aereo case file. In 2008, the same Second Circuit Court of Appeals handed Cablevision a significant victory when it overturned a lower court and said the company was allowed to provide remote DVR functionality to its customers by using massive servers at its head-ends to record programming instead of giving them expensive set-top boxes with hard-disk recorders.
The lower courts have yet to rule on the underlying broadcaster challenge to Aereo, but broadcasters obviously don’t want to wait for those wheels to grind before stopping the service.
"Today's filing underscores our resolve to see justice done. Make no mistake, Aereo is stealing our broadcast signal," said a Fox spokesperson. "As do so many businesses both large and small, broadcasters rely on enforcement of the law to receive fair value for the high quality news, sports and entertainment we create and in turn deliver to millions of Americans each day."
"We are dismayed by the broadcasters' brazen attempt, in a case about Aereo, to go after the legal underpinning of all cloud-based services, everything from digital lockers to Cablevision's own RS-DVR service," said Cablevision in a statement. "Given that there are much narrower -- and more persuasive -- legal grounds for invalidating Aereo that do not threaten such underpinnings, the broadcasters' approach can only be seen as a willful attempt to stifle innovation. If Aereo ends up prevailing, it will serve the broadcasters right."
Seeking Supreme Court review were: American Broadcasting Companies Inc.; Disney Enterprises Inc., CBS Broadcasting Inc.; CBS Studios Inc.; NBCUniversal Media LLC; NBC Studios LLC; Universal Network Television LLC; Telemundo Network Group LLC; WNJU– TV Broadcasting LLC; WNET; THIRTEEN Productions LLC (formerly THIRTEEN); Fox Television Stations Inc.; Twentieth Century Fox Film Corporation; WPIX LLC (formerly WPIX, Inc.); Univision Television Group Inc.; The Univision Network Limited Partnership; and Public Broadcasting Service.