Aiming to stop CBS from filing a new round of lawsuits, online video company Aereo today asked a federal judge in New York to affirmatively state that the
cord-cutting service does not infringe copyright.
The move comes several days after TV executives publicly threatened new litigation in Massachusetts against Aereo, which recently announced
plans to expand into Boston.
U.S. District Court Judge Alison Nathan in New York already ruled that the Barry Diller-backed startup likely complies with copyright law. A three-judge panel of
the 2nd Circuit Court of Appeals in New York upheld that ruling last
month.
But Aereo now is asking for a declaratory judgment that its service is legal. Such a ruling would essentially repeat the earlier decisions, but in more emphatic terms.
The
earlier rulings already bar CBS itself from suing Aereo elsewhere in the country, according to copyright expert James Grimmelmann, a visiting professor at Georgetown Law School. “The suit is
mostly just a way of drawing an underline beneath Aereo's victory,” he tells Online Media Daily.
But the earlier rulings arguably could allow CBS to try to arrange for a different
plaintiff -- like a local affiliate -- to bring suit. Now, Aereo is aiming to preempt that possibility by naming a host of CBS affiliates as defendants in the request for a declaratory judgment,
Grimmelmann says.
Aereo, which currently operates in the New York area, said on April 23 that it plans to soon launch in Boston. That news prompted CBS executive Dana McClintock to tweet that
the network would bring new legal action. “We will sue, and stealing our signal will be found to be illegal in Boston, just as it will be everywhere else,” McClintock wroteon Twitter. CBS chief Les Moonves also vowed
to sue Aereo in other jurisdictions, according to press reports.
The startup says in its newest legal papers that any “follow-on” lawsuits “would be an attempt to avoid or
evade” the prior rulings in favor of Aereo in New York. “It is not proper for parties to attempt to re-litigate claims that are pending, let alone already decided,” Aereo argues.
“Among other reasons, it would be highly inefficient and a waste of judicial resources.”
Aereo's $8 monthly subscription service allows people in the New York area to stream
over-the-air broadcast channels to iPads, iPhones and other devices. Aereo also enables users to “record” and save programs for later viewing. The company says it doesn't infringe
copyright, due to its architecture, 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.
Last year, the TV networks
sued Aereo for copyright infringement, arguing that the company's streams constitute a “public performance” of TV programs. Only copyright holders are allowed to offer public
performances.
The networks asked for an injunction shuttering Aereo down in New York. But a trial judge and a three-judge panel of the 2nd Circuit ruled that Aereo doesn't
“publicly” perform programs because its antennas only stream one show at a time. The networks recently filed papers asking the entire 2nd Circuit to reconsider the case.