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Aereo Redefines Itself as a Cable System

16 Jul, 2014 By: Doug McPherson

NEW YORK – Online video service Aereo says in new court papers that the Supreme Court’s recent decision that Aereo infringed copyright supports the argument that it’s actually a cable system and is therefore entitled to stream TV shows over the Internet, providing that it pays fees to broadcasters.

Aereo suspended its service in late June after the Supreme Court ruled it was “publicly” performing TV shows without a license. Aereo was serving customers 11 U.S. cities with live over-the-air TV shows.

In an opinion from Justice Stephen Breyer, the Supreme Court ruled Aereo’s architecture was irrelevant to the legal question. He wrote that Aereo’s performances were “public,” because its service was “highly similar” to that offered by the first generation of cable companies, then known as community antenna TV providers.

In a status report filed last week with U.S. District Court Judge Alison Nathan in New York, Aereo says, “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.”

Aereo also told Nathan that questions about whether it’s entitled to a compulsory license “must be decided on an immediate basis or Aereo’s survival as a company will be in jeopardy.”

TV broadcasters say Aereo’s new strategy – that it’s entitled to a license under Section 111 of the Copyright Act – is at odds with the company’s prior legal position.

“Aereo never before pled Section 111 as an affirmative defense,” broadcasters told Nathan. “Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a ‘cable system.’”

Online Media Daily reports that University of Maryland law professor James Grimmelmann, who followed the litigation, says Aereo faces an uphill battle with its argument. “Aereo will have a very hard time backing out of its previous litigation position,” he contends.

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