CBS Affiliates Say Aereo Pulled Litigation Trigger Too Quickly

Online video company Aereo recently went on the offensive in court by filing a new lawsuit against 18 CBS local affiliates. The Barry Diller-backed startup is asking U.S. District Court Judge Alison Nathan in New York to declare the service is legal.

That type of ruling would essentially repeat two earlier decisions about the service -- one by Nathan and one by an appellate panel. But it also could prevent local CBS affiliates from suing Aereo in other jurisdictions.

This week, the local stations responded by arguing that the lawsuit was premature. “Aereo’s anticipatory lawsuit should be rejected,” the local stations argue in a brief filed with U.S. District Court Judge Alison Nathan in New York.

They add that any dispute between most local CBS stations and Aereo is only “hypothetical,” given that Aereo hasn't yet launched nationwide, and that no local affiliates have yet filed lawsuits against the company.

Aereo filed the motion after CBS executives vowed to sue the online video startup in any market where it rolls out its $8 a month service, which streams over-the-air TV shows to people's iPhones and other devices. CBS itself can't sue Aereo again, given that the company is already embroiled in litigation with Aereo in federal court in New York. But local affiliates potentially could bring their own lawsuits.



Whether they really would do so isn't clear. But TV executives have left no doubt that they don't want to see online video company Aereo -- or its West Coast rival Aereokiller -- siphon customers away from cable companies.

The networks have been fighting both companies in court since last year. Both services rely on thousands of tiny antennas to capture the over-the-air signals and stream them to users on a one-to-one basis. The networks say that those streams are “public” performances, which infringe copyright.

So far, the networks have prevailed against Aereokiller, but not Aereo. Why the difference? Largely because judges can't agree on how copyright law applies to the service. In New York, a federal district court judge, and an appellate panel of the 2nd Circuit, agree with Aereo that the streams are not public performances.

On the other hand, the networks' battle against Aereokiller is being litigated in California, where a district court judge has said he believes the service infringes copyright. Aereokiller has appealed that ruling to the 9th Circuit and is still awaiting a decision.

Given the disagreement among judges, it makes sense that TV executives would threaten to litigate in as many forums as they can -- at least until the Supreme Court rules on whether the service is legal.

But even if courts decide to shut down Aereo and Aereokiller, TV networks are still going to have to face the fact that many people are cutting their cable cords. Even before Aereo came along, some people had cut pricey cable subscriptions out of their budgets. And even if Aereo is shut down, consumers have access to Netflix, Hulu and other clearly legal services that can substitute for cable -- at least in some respects.

The networks would be better advised to focus on how to replace revenue they will lose from cord-cutters than to try to force innovative video startups out of business.

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