TV broadcasters that are suing Aereo in Utah are asking a judge to ban the service from operating immediately -- without waiting for the Supreme Court to rule on the company's legality.
“The continued presence of Aereo’s service in the Utah market while the Supreme Court proceedings unfold over the next five months threatens plaintiffs’ goodwill with viewers because it creates confusion and embeds incorrect, but lasting, impressions about Internet television retransmission services,” the broadcasters argue in papers filed on Friday with U.S. District Court Judge Dee Benson.
Aereo, like the rival company FilmOn X, allows people to stream over-the-air TV shows to devices like iPhones and iPads. TV broadcasters are suing both companies in courts throughout the country. The broadcasters say the startups infringe copyright by retransmitting shows without a license.
But Aereo and FilmOn X argue they are legal due to their design. Both say they have installed thousands of small antennas that capture over-the-air broadcast signals and then stream the programs to users. Aereo and FilmOn X say the streams don't require licenses because they are “private” performances, made on an antenna-to-user basis.
Aereo won preliminary courtroom victories in New York and Boston, where judges refused to shutter the service before trial. But broadcasters have prevailed in California and Washington, D.C., where judges ordered FilmOn X to stop streaming copyrighted programs.
The Supreme Court recently agreed to rule on whether Aereo should be prohibited from operating. That court is expected to issue a decision in June. Given that the ruling will affect the other pending cases, judges in New York and Boston have put the lawsuits against Aereo on hold.
Aereo recently asked for the Utah case to be delayed as well. But the broadcasters are pressing for an immediate injunction that would prohibit Aereo from operating. Among other reasons, the broadcasters argue that Aereo interferes with their relationships with the companies that pay retransmission fees. Those companies “will demand concessions to compensate for the competition from Aereo’s unlicensed service,” broadcasters argue.
They also contend that Aereo harms their ability to reach deals with advertisers, given that Nielsen doesn't yet measure TV viewership on iPads or mobile devices.
Aereo counters that two other trial judges have rejected similar arguments by broadcasters. The company says the case should be delayed until the Supreme Court announces a decision.
University of Maryland law professor James Grimmelmann, who has followed the litigation closely and plans to file a friend-of-the-court brief with the Supreme Court, says there are good reasons to delay the Utah case. “The Supreme Court is going to rule on the legal issue that is at stake in the preliminary injunction motion,” he says. “Importantly, Aereo -- the party that will be bound by that injunction -- has prevailed twice on a pure issue of law in other courts,” says Grimmelmann.
In related news, the California-based 9th Circuit Court of Appeals said this week that it will delay issuing a decision about whether to lift a ban on FilmOn X until the Supreme Court issues a ruling about the legality of Aereo.
That move likely means that the injunction prohibiting FilmOn X from operating on the West Coast will remain in place until at least June. The 9th Circuit's decision to delay the case follows a similar ruling by the D.C. Circuit Court of Appeals, which also is considering whether to lift an injunction against FilmOn X.