• by Wendy Davis  @wendyndavis, April 29, 2013

TV broadcasters are asking a federal appellate court to order online video service Aereokiller to remain shuttered.

“Aereokiller represents the latest in a long line of services that, utilizing various technologies, have sought to retransmit over-the-air broadcasts of television programming without licenses to do so,” a group of networks argues in papers filed late last week with the 9th Circuit Court of Appeals. “By failing to obtain the necessary copyright licenses to retransmit broadcast television programming, Aereokiller is infringing.”

Aereokiller, like the Barry Diller-backed Aereo, offers paying subscribers the ability to stream over-the-air broadcast channels to iPads, iPhones and other devices. Aereokiller and Aereo also enable users to “record” programs for later viewing. Both services argue that they don't infringe copyright due to their design, which relies on thousands of tiny antennas to capture the over-the-air signals and stream them to users on a one-to-one basis.

The TV networks disagree. They filed separate lawsuits against both Aereokiller and Aereo, contending that the start-ups infringe copyright by transmitting TV programs without licenses. So far, Aereo has won initial victories in New York.

But last year, U.S. District Court Judge George Wu in California sided against Aereokiller and ordered the service to cease operations. Aereokiller appealed to the 9th Circuit Court of Appeals, where the company argues that its streams are legal, private performances -- and not unauthorized public performances -- because the streams are made on an antenna-to-user basis.

Aereokiller has drawn support from digital rights groups, which weighed in with a friend-of-the-court brief asking for the injunction to be lifted.

Late last week, the broadcasters filed legal papers asking the 9th Circuit to uphold Wu's order. Fox filed one set of papers, while NBC, CBS and ABC filed a separate brief. Fox argued in its papers that Aereokiller's claims rest on a “loophole” created by a federal court in New York in a lawsuit about Cablevision's remote DVRs. In that case, the appeals court ruled that Cablevision didn't engage in public performances -- which would violate copyright -- by transmitting shows from remote servers to consumers' homes.

“Aereokiller believes it has found a legal loophole that allows it to do exactly what cable, satellite, and other authorized retransmission services do -- retransmit broadcast television to the public for a profit -- yet without paying for the same licenses these other services pay for,” Fox argues in its papers.

The broadcaster goes on to ask the 9th Circuit to reject the reasoning behind the New York judge's decision regarding Cablevision. Fox adds that Cablevision, unlike Aereokiller, paid licensing fees.

NBC, CBS and ABC likewise argue that Aereokiller is infringing TV broadcasters' rights, despite its architecture. “Regardless of whether Aereokiller utilizes one antenna or multiple antennas or one copy or multiple copies, or whether it makes one stream to multiple subscribers or a single stream to each subscriber, Aereokiller is exploiting without authorization copyrighted works created by others,” the TV networks argue.

“The economic value of that exploitation is the same regardless of Aereokiller’s technological manipulations.”