• by Wendy Davis  @wendyndavis, November 18, 2013

The sports groups say in a friend-of-the-court brief that a recent appellate decision in Aereo's favor “unsettles the marketplace for licensing rights to broadcast television programming.” The NFL and MLB add that the pro-Aereo ruling of the 2nd Circuit Court of Appeals “unravels” the foundation of television's current business model by “giving broadcast retransmission rights to unlicensed commercial strangers.”

The Barry Diller-backed Aereo allows subscribers to stream over-the-air TV shows to the iPhones, iPads and other devices. The company also provides DVR-like functionality, enabling people to “record” shows and watch them later.

After Aereo launched last year in New York, the major TV broadcasters filed a copyright lawsuit against the company in federal court. The broadcasters say that Aereo infringes copyright by publicly performing programs without a license.

Aereo countered that its system was legal due to its architecture, which uses thousands of tiny antennas to capture and stream over-the-air broadcasts. Aereo says its streams aren't public performances but private ones, because they are made on an antenna-to-user basis. The 2nd Circuit agreed with Aereo, and ruled that the broadcasters aren't entitled to prevent Aereo from operating.

Broadcasters are now trying to convince the Supreme Court to hear an appeal of that ruling. The NFL and MLB are among the groups who filed friend-of-the-court briefs backing the broadcasters' application.

The sports leagues say that the 2nd Circuit's ruling “permits technological gimmickry that serves no valid purpose to nullify critically important copyright rights.” The NFL and MLB add that the appellate decision could allow other companies to imitate Aereo and also transmit programs without paying licensing fees. “The Leagues and other content owners indirectly receive a share of the several billion dollars that cable systems and satellite carriers pay broadcasters for the right to retransmit broadcast signals,” the sports groups write. “The decision below provides cable systems and satellite carriers with a roadmap to avoid paying those retransmission royalties.”

The sports groups add that broadcast stations “will become less attractive media for distributing copyrighted content” if Aereo (and other similar services) can operate. “The option for copyright holders will be to move that content to paid cable networks (such as ESPN and TNT) where Aereo-like services cannot hijack and exploit their programming without authorization.”