• by Wendy Davis , Staff Writer, December 12, 2013

Aereo today asked the Supreme Court to decide once and for all whether the company's streaming service is legal.

The Barry Diller-backed startup so far has prevailed in court against TV broadcasters, who want to shut down the streaming service. But even though Aereo has beaten back broadcasters in New York and Boston, the networks have vowed to sue Aereo in every market where it launches. Making good on their threat, broadcasters recently brought two separate lawsuits in Utah, where Aereo rolled out its service several months ago.

TV broadcasters recently asked the Supreme Court to hear an appeal of one of the major pro-Aereo rulings -- a decision issued earlier this year by the Second Circuit Court of Appeals in New York. That court refused to prohibit Aereo from operating its service, which allows customers to stream over-the-air TV shows to iPhones, iPads and other devices.

Aereo said today that it's joining in the broadcasters' request for Supreme Court review, mainly because it's tired of fighting the same battle in multiple cities. “Even though the Second Circuit decided [the] issue correctly, petitioners have signaled their intention to wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business,” the company says in its court papers. “Accordingly, Aereo believes it is appropriate for this Court to grant review to affirm the decision below.”

The dispute centers on whether Aereo is allowed to stream TV shows without licenses. The broadcasters say the answer is no, arguing that Aereo's streams are “public” performances, which require licenses. But Aereo says its streams are “private,” and therefore don't infringe copyright. The company has installed thousands of tiny antennas in cities where it operates, and uses those antennas to capture over-the-air signals and stream them to users. Aereo argues that the streams are private because they're made on an antenna-to-user basis.

At first glance, it seems odd that the company is seeking Supreme Court review, given that Aereo won in the Second Circuit. After all, if the Supreme Court declines to take the case, Aereo can continue to operate. But the company might have good reasons for wanting the Supreme Court to decide the matter, says University of Maryland law professor James Grimmelmann, who has followed the case closely.

For one thing, he says in an email, Aereo might want to see the cases “resolved quickly and decisively rather than taking their chances in one circuit after another.”

Grimmelmann adds that Aereo could think it has better odds of winning at the Supreme Court than its chief rival, FilmOn X, which is also facing litigation by broadcasters. Even though FilmOn X reportedly uses the same technology as Aereo, judges in California and Washington, D.C. have prohibited FilmOn X from operating.

Not only does FilmOn X have a worse track record than Aereo in court, but the startup also has a history of questionable judgment: Initially, the company called itself Aereokiller, but changed its name after Aereo brought a trademark infringement lawsuit. More recently, a federal judge found the company in contempt of court for testing its service after she prohibited it from operating.

FilmOn X is appealing the rulings against it, but if the appellate courts in those parts of the country also rule against FilmOn X, there will be a “circuit split,” which often spurs the Supreme Court to accept a case. That's probably the last thing Aereo wants, according to Grimmelmann.

“Aereo has realized that the alternative to having the Supreme Court take its case is for the Supreme Court to wait until there's a circuit split and take FilmOn's case,” Grimmelmann says. “Aereo would much rather litigate the case itself than leave its fate in the hands of FilmOn and FilmOn's lawyers.”