Aereo Attacks Court Ruling Against Rival

Online video company Aereo is seeking to weigh in with the appellate court that's deciding the fate of rival service FilmOn X.

Aereo says in court papers filed late last week that it “has a direct interest” in FilmOn X's appeal, given that any appellate decision about FilmOn X “could affect the ability of Aereo and other 'cloud computing' Internet services to expand their technology offering to consumers.”

The Barry Diller-backed Aereo officially says it doesn't support either FilmOn X or the TV broadcasters that sued the company for copyright infringement. But Aereo's proposed friend-of-the-court brief sides with FilmOn X on the key contested issue -- whether companies can capture over-the-air TV shows with antennas and then stream programs to users.

Aereo, like FilmOn X, reportedly uses thousands of tiny antennas to capture broadcast TV and stream shows to users. Both companies say that their streams are “private,” because they're made on an antenna-to-user basis.

The TV broadcasters disagree and have sued both companies for copyright infringement. The broadcasters argue that the streams to users are “public” performances, which require licenses.

So far, Aereo has prevailed in an appellate court in New York and a trial court in Boston. But TV broadcasters have obtained injunctions against FilmOn X in California and Washington, D.C. In the Washington case, U.S. District Court Judge Rosemary Collyer banned on FilmOn X from streaming TV shows.

FilmOn X recently appealed the Washington, D.C. decision to the D.C. Circuit Court of Appeals. That appeal has drawn friend-of-the-court briefs by outside groups and consumer advocates. One brief, filed by a coalition of advocacy groups, criticizes Collyer's rationale for the ban. The groups, including Public Knowledge and the Electronic Frontier Foundation, argue that an appellate opinion endorsing Collyer's reasoning “could create a systematic bias against emerging technologies.”

Aereo argues in its proposed brief that Collyer's ruling “creates significant uncertainty not only for Aereo but for all companies that have relied on the concept that consumers are entitled to make private performances of copyrighted works, including by using remote storage resources.”

Aereo adds: “If allowed to stand, that decision will chill incentives for cloud-based businesses including Aereo, and deter capital investments in innovative technologies, that simply enable consumers’ private performance right.”
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