“The Supreme Court’s holding that Aereo’s live ('Watch Now') functionality is indistinguishable from a cable system under the Copyright Act also means that Aereo is eligible for a compulsory license,” the company says in papers filed on Friday with the 10th Circuit Court of Appeals. “The broadcasters cannot rely on one part of the Supreme Court’s holding while ignoring its logical and necessary corollary.”
Aereo's latest round of court papers come in response to a motion by broadcasters for “summary affirmance” of U.S. District Court Judge Dale Kimball's order enjoining Aereo from operating in six states: Utah, Colorado, Kansas, New Mexico, Wyoming and Oklahoma. Kimball issued that order in February, four months before the U.S. Supreme Court said that Aereo's system infringed copyright by transmitting programs without a license.
Aereo enabled paying subscribers to stream over-the-air television programs to their smartphones and tablets. The company also offered DVR functionality, allowing people to record shows for later viewing.
Broadcasters sued the company in three cities -- New York, Boston and Salt Lake City -- arguing that it infringed copyright by publicly performing shows without a license. Aereo took the position that its transmissions were private, due to its technology. The company relied on multiple antennas to capture and then stream shows on an antenna-to-user basis.
Kimball was the only judge to rule against Aereo until June, when the dispute reached the Supreme Court. That court sided with broadcasters, ruling that Aereo resembled a cable system, which must be licensing fees before it can transmit shows.
The Supreme Court didn't actually say that Aereo was a cable system, only that it resembled one. Nonetheless, Aereo now contends that the Supreme Court's ruling transformed the company into a cable system. The company, which says it wants to pay cable licensing fees, is asking the 10th Circuit to lift Kimball's injunction.
It's not clear that other judges will agree that Aereo is a cable system. In New York, a federal appellate court ruled several years ago that ivi TV, which also streamed programs online, was not entitled to the same rights as cable companies. But the judges noted in that case that ivi TV could stream programs nationwide. Aereo only streamed shows to users who were within one of its markets.
Late last month, the broadcasters asked the 10th Circuit to reject Aereo's newest arguments for procedural reasons, noting that the company didn't give Kimball the opportunity to rule on the arguments.
But Aereo says in its latest papers that its latest legal theories stem directly from the Supreme Court's recent decision. “The broadcasters seek to prevent the merits panel from considering the impact of the Supreme Court’s decision on Aereo’s eligibility for a statutory license and the legality of its Cloud DVR by contending that these arguments were not presented below,” the company argues. “Aereo’s arguments on appeal arise out of the Supreme Court’s supervening opinion ... As a result, they are properly before the merits panel.”
Aereo also is asking the 10th Circuit to allow the company to resume offering DVR services. The Supreme Court didn't address whether Aereo's cloud-based DVR service infringed copyright.
On Monday, the 10th Circuit told broadcasters to file their next round of papers by Sept. 10.