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Aereo to Broadcasters: Bring It On

Surprising many, Aereo has decided not to oppose television broadcasters' petition to have the Supreme Court shut the service down.

Aereo is ready for a fight (yes, another one).

Earlier this year, the embattled New York City-based startup, which allows people to stream network television online, won a battle in New York federal appeals court against major television broadcasters who wanted Aereo shut down for allegedly violating their copyrights. Now, those broadcasters are coming back for more, petitioning the Supreme Court to overturn the ruling.

Aereo CEO Chet Kanojia has a message for them: bring it on.

"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," he said in a statement. "We want this resolved on the merits rather than through a wasteful war of attrition."

What's at Stake

At issue here is the fact that Aereo uses over-the-air signals to broadcast television shows, and it does that by connecting each Aereo user to an individual mini-antenna stored in a remote warehouse. That way, Aereo bypasses the licensing fees it would otherwise have to pay broadcasters.

"The Aereo technology is functionally equivalent to a home antenna and DVR, but it is an innovation that provides convenience and ease to the consumer," Kanojia's statement read.

Still, broadcasters are petitioning the Supreme Court, asking it to hear the case alleging that Aereo's service constitutes a "public performance" of copyrighted material. Given its track record of winning in court, many expected Aereo to formally oppose the position. Refusing to oppose it is a bold show of faith by Aereo in the legal merits of its own service.

This Isn't Just About Aereo

Meanwhile, Cablevision--which previously supported the war against Aereo--is having a minor change of heart. Aereo's very service, you see, is based on a 2008 court decision, which found that Cablevision's DVR service was not a public performance, but a private one. If the Supreme Court were to side with broadcasters in the Aereo case, it would render Cablevision null and jeopardize other cloud storage companies like DropBox and Box.

"The broadcasters' overreaching copyright arguments would, if accepted, cause grave harm to consumers, cloud-based technology, and future innovation," Cablevision said in a statement. "In a case about Aereo, the broadcasters go well beyond Aereo and attack the legal underpinning of all cloud-based services, everything from the Apple iCloud to Cablevision's own remote storage DVR  service. In short, the broadcasters are asking the Court to throw the baby out with the bathwater--a move that could cripple cloud-based innovation in the U.S."

According to John Bergmayer, senior staff attorney with the nonprofit Public Knowledge, the move by Aereo makes sense. "I feel like Aereo wants to get the legal issues clarified and provide some certainty to its business, given a very complicated litigation background," he says. That being said, Bergmayer says it's always a stretch for the Supreme Court to take up a case, especially since several appellate courts have ruled in Aereo's favor. "But Aereo supporting having its case heard by the Supreme Court is sure to make the Court take notice."

Matt Schruers, a professor at Georgetown University Law School, adds, "The decision illustrates Aereo's confidence in its position, but also the enormous magnitude of the Cablevision principle that is at issue in the underlying litigation. This dispute is about more than Aereo."

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