Constitution Daily

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Aereo case heads to a behind-doors Supreme Court session

January 7, 2014 by Scott Bomboy


A case that could revolutionize how and where you watch basic broadcast TV programs gets its first look in the Supreme Court on Friday, in a private conference held by the nine Justices.

tvantennenas640The Court will consider various petitions in the conference, including the case of American Broadcasting Companies, Inc. vs. Aereo, Inc. In case you missed it, the Court put the Aereo case on its schedule on December 24, 2013, saying it would consider it on January 10, 2014.

With any kind of luck, both sides in the case will find out on Monday, January 13, if the full Court will accept the Aereo case, and hear public arguments sometime this year.

The case has received a lot of media attention, because it is basically about the media and copyright protection issues.

Court watchers believe there is a good chance the Court will take the case at some point.

Aereo is a company that provides a paid service used by people with computers, and it allows customers to watch broadcast TV programs on a computer that are also available for free over the airwaves.

Beyond those basic facts, the sides in the case don’t agree on much more, and Aereo and the TV networks both want the Court to settle their dispute. There are also conflicting rulings in different federal courts, thanks to an Aereo competitor that jumped into the same business as Aereo.

The TV networks are deeply upset that a company that can resell their broadcast TV signals will erode their revenue models, which depend on retransmission fees and contracts with sports organizations.

So in addition to ABC, the network lawyers at CBS, Fox, NBC and Univision are involved in the case, and the National Football League and Major League Baseball have filed petitions against Aereo.

The TV networks claim that Aereo is reselling content that they own the copyright to, through their original productions or through contracts.

Aereo’s unique system consists of banks of tiny broadcast TV antennas in local TV markets. A customer, in theory, rents one of the dime-sized antennas and receives broadcasts from it over the Internet using Aereo’s delivery technology.

Aereo’s business model is based on a court decision, a 2008 ruling commonly called the Cablevision case, which was decided in the United States Court of Appeals for the Second Circuit. The case of Cartoon Network, LP v. CSC Holdings, Inc., found that Cablevision had the right to record Cartoon Network programs using a DVR service that Cablevision hosted for the benefit of its subscribers.

In a July 2012 ruling, a U.S. district court denied the broadcasters’ request for an injunction against Aereo, citing the Cablevision decision. The judge in that case said without the Cablevision precedent, the broadcasters would have likely gained the injunction, based on copyright laws.

In the long run, networks could be forced to rethink their business strategy about offering free TV signals if they lose the Aereo case. Executives at CBS, Fox and Univision have said they would consider pulling most of their programming from the airwaves and put it on paid cable or satellite channels they already own.

There also have been reports that television providers such as DirecTV and Time Warner would consider an Aereo-like system to avoid billions of dollars in retransmission fees paid to the networks.

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