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Broadcasters Bring Aereo Complaint to Supreme Court

14 Oct, 2013 By: Chris Tribbey

Broadcasters are hoping the Supreme Court will take up its case against Aereo TV — the subscription service that lets users stream broadcast TV to portable devices via a mini antennae — after two attempts to shut down the service were denied by lower courts.

Broadcasters large and small petitioned the Supreme Court Oct. 11 to hear their case, arguing that Aereo is just like any other cable or satellite operator, and must obtain authorization to retransmit over-the-air broadcasts of TV programs to the public. The broadcasters argue that Aereo’s business — which allows consumers to use an individual remote antenna and cloud DVR via the Internet to record and watch over-the air programs for $8 a month — amounts to “public performance,” and thus a violation of the Copyright Act.

“Aereo offers precisely the kind of service Congress sought to prohibit when it revised the Copyright Act to define ‘public performance’ to include retransmissions of over-the-air broadcast transmissions to the public,” the petition reads. “The Second Circuit nevertheless endorsed Aereo’s business model, holding that Aereo’s retransmission of over-the-air TV broadcasts to its paid subscribers is not a public performance because each Aereo subscriber receives an individualized transmission streamed from an individual subscriber-associated digital copy of the broadcast transmission.”

Because Aereo’s simultaneous transmissions to thousands of paying subscribers are being received via individual antennas, Aereo has been found in the right by lower courts. Aereo has said repeatedly that it’s only bringing modern technology to the over-the-air broadcast business.

However, the broadcasters used the example of tens of thousands of Aereo subscribers simultaneously watching the Super Bowl using Aereo. How is that not a “public performance” of protected work, they argue?

“As courts and commentators have recognized, that nonsensical reasoning cannot be reconciled with the plain text of the Copyright Act or Congress’ manifest intent to include retransmission services within the scope of the public-performance right,” the petition reads. “Congress amended the act in technology-neutral terms to reach any retransmission ‘by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

ABC, CBS, CBS Studios, NBC Universal, NBC Studios, Universal Network Television, Telemundo Network Group, WNJU– TV Broadcasting, WNET, Thirteen Productions, Fox Television Stations, Twentieth Century Fox Film Corp., WPIX, Univision Television Group, The Univision Network Limited Partnership and PBS are all named as plaintiffs in the case.

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