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Networks Seek Review of Court Ruling

24 Apr, 2013 By: Doug McPherson

NEW YORK – TV networks want a federal appeals court to reconsider a ruling that lets online video company Aereo continue its cord-cutting service.

Aereo lets viewers watch and record live streams of over-the-air TV shows on mobile devices such as iPhones and iPads. Before launching in New York last year, Aereo installed thousands of dime-sized antennas in a building in Brooklyn. Those antennas capture over-the-air shows, which are then streamed live to paying subscribers.

The broadcasters say the ruling threatens the over-the-air broadcasting industry, and they want the case reheard. They also argue that Aereo is operating like a cable TV company, and that it’s illegally transmitting TV shows without a license. The broadcasters say the transmissions are a “public performance,” which requires a license.

Earlier this month, a panel of the Second Circuit in New York ruled 2-1 that Aereo’s transmissions aren’t public performances. That ruling upheld a trial judge’s decision denying the TV networks’ request for an injunction banning Aereo from operating. The two pro-Aereo judges said the company’s technology complies with the requirements of copyright law.

The judges in the majority agreed with Aereo’s argument that it has the same right to install antennas that receive over-the-air TV as any individual, and that the streams are legal because they’re made on an antenna-to-user basis. The majority found that Aereo’s technology complies with a 2008 Second Circuit ruling in a lawsuit involving Cablevision’s remote DVR service. In that case, the ruled that Cablevision’s DVR – which transmits programs to individual households on a DVR-to-user basis – doesn’t infringe copyright.

But U.S. Circuit Court Judge Denny Chin dissented and called Aereo’s technology platform “a sham,” and “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”

The networks say Aereo’s transmissions to subscribers “should have been aggregated,” instead of considered as individual, private performances. “Aereo sends the identical broadcast program to thousands of its subscribers at the same time,” the networks contend.

The broadcasters pointed to a judge in California who recently found that Aereokiller – an online video service that uses the same technology as Aereo – appears to violate copyright law.

Several network executives have criticized the decision, and News Corp. executive Chase Carey threatened to move Fox to cable television unless the courts shut down Aereo, according to MediaPost News.

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