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Broadcasters Take Aereo Fight to Supreme Court

16 Oct, 2013 By: Doug McPherson

WASHINGTON – TV broadcasters petitioned the U.S. Supreme Court last Friday to enter their fight against Aereo, the online service that streams broadcasters’ over-the-air programming to Aereo’s paying members.

Aereo’s small antennas let consumers watch live local broadcasts on some Internet-connected devices and store shows in a cloud-based DVR. ABC, CBS, Fox and Comcast's NBCUniversal have sued Aereo, saying the service violates their copyrights and that Aereo must pay them.

The broadcasters asked the court to decide whether the performance of their copyrighted programming via Aereo is "public" and therefore prohibited by the copyright law, or if Aereo is engaged in tens of thousands of "private" performances to paying strangers, as the online company has so far argued successfully.

In April, Aereo prevailed in the U.S. Second Circuit Court of Appeals, which affirmed a New York-based district court's decision to deny a preliminary injunction motion from television networks that would have prevented Aereo from transmitting the broadcasts to its subscribers.

The networks followed up by requesting the case be reheard before a full panel of judges, which was also denied in July by the majority. However, a dissenting opinion signed by two judges called Aereo a "sham."

Early last week, a judge in a U.S. District Court in Massachusetts denied a preliminary injunction against Aereo sought by Hearst and its Boston broadcast TV station, WCVB.

The broadcasters say the Supreme Court should review the case because courts outside the Second Circuit in New York have been shutting down similar services, setting up court conflict. The petition also argued that the Second Circuit decision in Aereo's favor is rapidly and deeply harming the TV industry.

The petition reads: "The decision below has far-reaching adverse consequences for the broadcast television industry, making the need for this Court's review urgent and acute … while conduct like Aereo's is being enjoined throughout the rest of the country, it is allowed to flourish in the largest national market. Inside the Second Circuit, technical detail trumps common sense.”

A Fox spokesman said the filing Friday underscores the company's resolve. "Make no mistake: Aereo is stealing our broadcast signal. As do so many businesses both large and small, broadcasters rely on enforcement of the law to receive fair value for the high quality news, sports and entertainment we create and in turn deliver to millions of Americans each day," he said.

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