• by Wendy Davis , Staff Writer @wendyndavis, December 24, 2013

Online video service Aereo and TV broadcasters don't agree on much, but are aligned on at least one thing: They want the Supreme Court to rule on whether Aereo's business is legal.

A group of broadcasters recently asked the Supreme Court to hear an appeal of a pro-Aereo ruling by the 2nd Circuit Court of Appeals. That court refused to stop Aereo from operating its service, which allows customers to stream over-the-air TV shows to iPhones, iPads and other devices.

Aereo said two weeks ago that it, too, wants the Supreme Court to decide the issue. Without the finality of a Supreme Court ruling, broadcasters will “wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business,” the company said in its court papers.

This week, the broadcasters filed new papers with the Supreme Court, reiterating their argument that Aereo is illegal. The company's business model is “designed to achieve the for-profit exploitation of the copyrighted works of others on a massive scale,” the broadcasters argue in papers filed on Monday. “Aereo pays nothing for the content it offers. Common sense dictates that Congress could not plausibly have intended that result.”

The dispute centers on whether Aereo can legally stream TV shows without licenses. The broadcasters say that Aereo's streams are “public” performances, which require licenses. “Aereo’s business of transmitting copyrighted performances to the public without authorization from or compensation to copyright holders plainly infringes upon their exclusive public performance rights,” the TV networks say in their most recent papers.

But Aereo says its streams are legal due to the company's architecture, which relies on 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.

The broadcasters counter that Aereo's whole antenna system relies on a “loophole” created by the 2nd Circuit in 2008, in a dispute involving Cablevision's remote DVR service. In that matter, content owners contended that Cablevision infringed copyright with its remote DVR -- which functioned like a home DVR, but wasn't actually in customers' homes. The appeals court ruled that transmissions made with a remote DVR were “private” performances, noting that each transmission was made to a single subscriber, using a “unique copy” that the subscriber directed the service to create.

The Supreme Court refused to consider an appeal in that case. But the networks say that the Supreme Court should get involved now, given that at least one other company -- FilmOn X -- already appears to be replicating Aereo's business. “Aereo may have been the first company to attempt so brazenly to exploit the loophole in copyright protection that the Second Circuit has created, but absent this Court’s intervention, it certainly will not be the last,” they argue. “Indeed, Aereo already has spawned one copycat service.”