• by Wendy Davis  @wendyndavis, January 15, 2013

Aereo's search marketing tactics could prove that the company
infringes copyright, the TV networks argue in recent court papers.

A coalition of networks that's suing Aereo for copyright infringement says in court papers that it needs to examine records from Google about Aereo's AdWords campaigns. That advertising information allegedly "bears directly" on whether Aereo's $8-a-month service potentially harms the market -- which can be a factor in copyright infringement.

"The AdWords purchases will likely confirm that Aereo is marketing itself as an alternative to both cable and satellite services as well as other Internet services, and not just an 'equipment' provider," the networks argue in papers filed last week in U.S. District Court in the Northern District of California. "They will also likely confirm that Aereo is encouraging cord cutting, a direct indication of market harm."

Aereo allows subscribers to watch over-the-air broadcast TV, on demand, via Phones, iPads and other devices. The $8-a-month service currently is available in New York, but the company said last week that it plans to expand to 22 additional cities. The TV networks are currently suing Aereo for copyright infringement,alleging that the service is unlawfully performing TV shows.

The Barry Diller-backed Aereo counters that its service is legal for a host of reasons, including fair use. Aereo says that consumers already have a fair-use right to time-shift by using VCRs or DVRs, and that its service enables another form of time-shifting.

As part of that lawsuit, the networks want to subpoena information from Google about Aereo's AdWords campaigns, as well as analytics data. Aereo last year filed papers seeking to quash that subpoena.

The networks counter that Aereo lacks standing because the subpoena isn't addressed to Aereo. The networks also say that they're entitled to the marketing and analytics information -- including data that would show how the campaign performed -- in order to fight Aereo's fair-use defense. "Consumer behavior and response are critical considerations when a fair use defense is asserted," the networks argue.

Fair use is only one portion of Aereo's defense. The company also says its technology is legal due to a previous ruling about remove DVRs. In that case, the 2nd Circuit Court of Appeals said Cablevision did not infringe copyright by offering a remote DVR. The court rejected an argument by entertainment studios that Cablevision was engaging in a public performance by transmitting programs to users from a remote hard drive.

Aereo says that its technology is legal for the same reasons as Cablevision's. Aereo installed thousands of tiny antennas in New York before launching. The company uses those antennas to capture broadcasts and then creates individual recordings of shows for customers' personal use; it plays back those recordings using a remote digital video recorder. Aereo says it doesn't have to pay licensing fees because people are allowed to install antennas and receive TV transmissions for free, as well as to record shows for personal use
via remote DVRs.