Streaming TV Startup Aereo Files Appeal In Network Case, Cites Cablevision Precedent

The legal battle between major broadcast networks and TV startup Aereo continues to unwind, as Aereo has filed a brief with the United States Court of Appeals for the Second Circuit. According to the 84-page briefing filed on October 19, Aereo’s position in this case is identical (in every relevant way) to Cablevision’s in the mid-2000s, when the cable provider won a case against major broadcast networks after being sued for a cloud-based remote DVR system.

This comes just a few months after a U.S. district Judge for the Southern District of New York denied a preliminary injunction against Aereo, which would have essentially shut down the service before it even fully launched. Since then, Aereo has been offering free trials, low-cost options, and special deals to attract new customers. And the company just expanded support beyond Apple products to all major web browsers.

And today the company went straight to the Appeals Court to try and end the case once and for all.

Indeed, contrary to what may be the view of certain Appellants [the broadcast networks], copyright laws were never intended to be used to confine consumers to outdated technology. The reality is that the networks fought VCRs, and they fought remote DVRs, and they lost in both cases. This is simply another attempt to preserve the status quo as a business matter without regard to fundamental copyright principles.

For a little perspective, networks are suing Aereo (just like they’ve sued any other TV streaming startup that scares them a bit) for distributing the live TV content without the networks’ permission. The only issue is that the content is already being streamed over public airwaves, and can be picked up by any antenna. Aereo’s technology rents hundreds of little mini antennas out to users for a live TV/cloud DVR type service.

Broadcasters don’t like that.

According to Aereo, Cablevision won an identical case recently. The Cablevision case claimed that since the remote DVR service only transmitted an individual’s unique copy of the content, which was controlled only by that user, Cablevision was not infringing on the broadcasters’ copyrighted content. In fact, everything was exactly the same as the original DVR service except that the content was stored in the cloud instead of on a DVR box hard drive in the user’s living room.

The same is true for Aereo, according to the briefing. Aereo users stream live content from free, over-the-air signals through a licensed mini-antenna. Because Aereo users transmit a single, unique copy through an individual user account, Aereo argues that this should not be seen as copyright infringement.

Aereo argues that the involvement of the internet, or mobile devices, or the distance between the antenna and the user makes no difference in the case. These advances have no bearing on the copyright law.

The Southern District Court of New York, which has been presiding over this copyright case, agreed with certain aspects of this argument when it first denied the preliminary injunction. Aereo is now using that ruling to further plead its case to the Appeals Court, saying that the Cablevision ruling would essentially have to be overturned in order to consider Aereo guilty.

At least, that’s the general argument the briefing makes.

There are more nit-picky bits to the briefing, such as the portions responding to Fox, Univision, and PBS’s claim that Aereo was built to purposefully circumvent copyright law following the Cablevision case.

Finally, both Appellants and amici argue that the Aereo technology is an “artifice” or some clever attempt to get around copyright law. Essentially, Appellants are arguing that Aereo carefully designed its system to comply with Cablevision. There is considerable irony in Appellants’ suggestion that Aereo is somehow culpable because it carefully designed its system to comply with copyright law.

This case will likely last years, but Aereo has been a very strong underdog, continuing to grow while fighting back against the lawsuit.

Here’s the complete briefing: