The digital rights groups Electronic Frontier Foundation and Public Knowledge are siding with Barry Diller's online video start-up Aereo in its dispute with the TV networks. In court papers filed today, the groups asked U.S. District Court Judge Alison Nathan in New York to deny the networks' request for a preliminary injunction shuttering the start-up.
"Although Aereo is the defendant, this case is in fact about the right of individuals -- Aereo’s customers and ultimately all residents of the U.S. -- to watch free local broadcast television with the technology of their choosing," the groups argue in a friend-of-the-court brief.
The dispute dates to March, when Aereo launched a $12 monthly service that allows people to watch over-the-air TV shows on iPhones, iPads, Roku and other devices. Shortly before launching, Aereo installed thousands of antennas, each the size of a dime, in various New York locales. Aereo uses those antennas to capture over-the-air broadcasts, creates individual recordings of them for customers' personal use, and then allows customers to play back those recordings with a remote digital video recorder.
Aereo argues it need not pay licensing fees because it's only enabling activity that consumers can do for free -- that is, to install antennas, receive TV transmissions, and time-shift with remote DVRs. To make this argument, Aereo draws heavily on a 2008 ruling that endorsed Cablevision's remote DVRs.
The TV networks disagree with Aereo's interpretation. Among other arguments, they argue that the pro-Cablevision ruling only applies to technology that allows people to time-shift programs to the same set-top box where they can watch the real-time broadcast.
The EFF and Public Knowledge take issue with the TV networks on that point. "A copyright owner has no greater rights when a viewer watches a baseball game on portable TV from a park bench than when he watches on his living-room TV," the groups argue.
The industry group NetCoalition also weighed in this week, arguing that a broadly worded ruling in favor of the TV broadcasters could put the legality of cloud computing in doubt.
NetCoalition -- made up of Amazon, Bloomberg, IAC (which didn't participate in preparing the court papers), Google, Wikipedia, and Yahoo -- says it isn't siding with Aereo or the TV broadcasters. Instead, the group is urging Nathan to clarify that consumers are allowed to use remote storage systems to ensure that their content will be available on more than one device.
"The very reason that consumers use remote storage or backup systems is to ensure that their content will be available to them on multiple devices when they travel away from their local storage devices or when those devices catastrophically fail."