Aereo, The Company Without A Plan B, Finds A Plan C

When Aereo was deemed illegal by the Supreme Court and paused its service last month, it seemed as if the TV streaming service was out of options.

But on Wednesday, Aereo lawyers filed a letter with a New York district court indicating that the company now considers itself a cable provider. It now believes that it should not have to stop its services because, if it can obtain a license, it is entitled to the same protections under the law as other cable providers paying royalty fees.

The letter comes a week after CEO Chet Kanojia called on subscribers to petition lawmakers to change existing copyright laws. That makes it the backup, backup plan for the company that said it would be finished if the Supreme Court did not rule in its favor.

When the Supreme Court handed its ruling down in favor of the broadcasting companies in June, it largely based its decision on the idea that the company was equivalent to service provided by a traditional cable provider, not merely an equipment provider. Aereo is now trying to use that ruling to its advantage.

“The Supreme Court’s holding that Aereo is a cable system under the Copyright Act is significant because, as a cable system, Aereo is now entitled to the benefits of the copyright statutory license pursuant to the Copyright Act,” the company’s lawyers said in their letter to the lower court’s judge. “Aereo is proceeding to file the necessary statements of account and royalty fees.”

The broadcasters, however, say Aereo can’t qualify for this defense because of its past statements before both the Supreme Court and the lower court that it was not a cable provider.

Aereo also argues that even if the lower court did not view the company as a cable provider, it should still limit the “scope” of any injunction it places on the service because the Supreme Court ruled “Aereo only publicly performs when its technology allows near simultaneous transmission of over the air television broadcasts to its users.” Currently Aereo only faces a preliminary injunction, but it suspended its service voluntarily.

Aereo’s lawyers wrote that the Supreme Court affirmed “non-simultaneous playback from copies created by consumers.” Perhaps if the service can’t continue in its current form, we could see the company continue with options for users to playback TV shows later.

Kanojia sent subscribers a copy of the lawyers’ letter in an email Wednesday.

Although it’s not clear whether Aereo will continue in its original form as a cable provider or adapt its offerings to some sort of playback service, today’s action shows the company is not ready to give up yet.