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Aereo Says “Bring It On” As Broadcasters Push Case Into The Supreme Court

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Why I’m Crowdfunding My Book

Aereo, a TV streaming service backed by media mogul Barry Diller, is in the middle of a fierce legal battle. The company uses remote, miniature antennas to pull free over-the-air signals from broadcast networks like Fox, ABC, NBC and 27 others, delivering the stations to customers’ connected devices for $8 per month.

Not surprisingly, broadcasters and media executives are not pleased with these methods and have tied the company up in legal battles. In New York, major broadcasters like ABC, NBC, Fox and others have taken their case to the Supreme Court, and have asked the court to appeal decisions made by the lower circuits, which ruled in Aereo’s favor.

Today, however, Aereo has filed a response with the court, agreeing with the opposition’s petition for the Supreme Court to hear the case.

The company released this statement today:

We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court. 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. We want this resolved on the merits rather than through a wasteful war of attrition.

“The long-standing landmark Second Circuit decision in Cablevision has served as a crucial underpinning to the cloud computing and cloud storage industry. The broadcasters’ filing makes clear that they are using Aereo as a proxy to attack Cablevision itself.

“Aereo provides to consumers antenna and DVR technology. With Aereo, a consumer tunes an individual, remotely located antenna and makes personal recordings on a cloud DVR. 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. The plaintiffs are trying to deny consumers the ability to use a more modern antenna and DVR by trying to prevent a consumer’s access to these technologies via the cloud.

“Consumers have the right to use an antenna to access the over-the-air television. It is a right that should be protected and preserved and in fact, has been protected for generations by Congress. Eliminating a consumer’s right to take advantage of innovation with respect to antenna technology would disenfranchise millions of Americans in cities and rural towns across the country.

“We are unwavering in our belief that Aereo’s technology falls squarely within the law and we look forward to continuing to delight our customers.”

But Why?

As it turns out, the anti-Aereo crowd is having a tough time winning in court. First, Aereo was hit with two separate lawsuits from major broadcasters like PBS, Univision, Fox, NBC, and ABC in the Southern District Court of New York. The judge denied their motion for a preliminary injunction against Aereo. When the same networks brought that decision to an appeals court, they refused to reconsider the decision.

Then, Hearst (which happens to be an ABC affiliate) filed a similar lawsuit in Boston after the company rolled out service in that market. The court did not grant Hearst a preliminary injunction, nor did it grant Aereo’s request to move the lawsuit to the New York courts, where Aereo had already received a favorable ruling. And in what is becoming an obvious pattern, Fox Broadcasting Co. filed a lawsuit against Aereo in Utah just after the service landed there.

Aereo was built with a specific ruling in mind, a precedent set by Cablevision. In a case a few years ago, a similar question was brought up by broadcasters who weren’t fond of Cablevision’s remote DVR service, which stored recorded and on-demand content in the cloud rather than on the customers’ box set.

The court eventually sided with Cablevision, which has been a determining factor in Aereo’s current legal battle.

With this latest filing in the Supreme Court, the broadcasters are trying to have the Cablevision precedent overturned. So again, why would Aereo agree to have this case heard on a federal level?

Aereo Killer

Well, it partially comes down to one billionaire. Heir to the Coca-Cola Hellenic shipping and bottling company, Alki David is a media entertainment mogul who owns companies such as Channel 3 Dish Networks in California and Nevada, Channel 8 Los Angeles, and KILM Channel 64 Los Angeles. He also happens to be the founder of a company called FilmOn, previously named AereoKiller.

FilmOn claims to offer Aereo-like technology, though that has yet to be confirmed or clarified by anyone. Still, the broadcast networks are equally displeased with the streaming TV company’s existence and have filed lawsuits against FilmOn in California and Washington D.C.

In the California case, the networks didn’t investigate into FilmOn technology beyond what David had claimed, which was that his technology was “Aereo-like.” A decision is currently pending on that case in the Ninth Circuit.

In the conspiracy theory version of this story, Alki David is secretly working with the networks to purposefully lose lawsuits and be deemed illegal by markets who have historically been strict on copyright issues. That way, Aereo (which is on the record as being similar to FilmOn) would be banned in those markets.

In the non-paranoid version, Alki David is simply a competitor who is throwing stones in the road before Aereo.

Either way, David’s FilmOn has left Aereo no choice but to go federal.

If FilmOn didn’t exist, Aereo might be able to enter into California or D.C. or other markets with a few W’s on the record, making individual lawsuits easier to win. But if FilmOn continues to lose on a case by case basis, things get much more difficult for Aereo.

The Verdict

With a win in the Supreme Court, lawsuits against FilmOn or any other “Aereo-like” technology will be irrelevant as Aereo will be deemed nationally legal.

Aereo had plans to expand to 22 new markets by the end of 2013, and has only made it into nine of them. But with all the legal fuss, the delay makes sense. Perhaps with a win in the Supreme Court, 2014 will be a smoother year for the disruptive TV startup.