Aereo Draws Broad Support In Battle With Broadcasters

Digital rights advocates, the American Cable Association, Dish Networks and a coalition of law professors are among a broad array of outside groups that are asking the Supreme Court to side with Aereo in its battle against television broadcasters.

They argue in various friend-of-the-court briefs filed on Wednesday that the Second Circuit Court of Appeals correctly rejected broadcasters' request to shut down Aereo, a startup that allows paying subscribers to stream over-the-air television to phones, tablets and other devices. The Barry Diller-backed Aereo also offers DVR functionality that allows people to “record” shows for later viewing.

The Supreme Court will hear arguments about Aereo's legality on April 22 and is expected to issue a decision by June.

Television broadcasters that are suing Aereo contend that the company infringes copyright by “publicly” performing shows without a license. Aereo counters that its streams are “private” performances, due to the company's architecture, which relies on thousands of tiny antennas to capture over-the-air transmissions and stream then on an antenna-to-subscriber basis.

The groups that filed friend-of-the-court briefs this week offer an assortment of different arguments against the broadcasters. The American Cable Association says in its papers that Aereo's technology merely provides another means for consumers to access and record over-the-air tv -- as they are legally entitled to do. Aereo “serves the public's right to tune in to signals broadcast over the public's airwaves and to do, remotely, what has long been permissible using the functional equivalent of home-based equipment,” the organization says.

Digital rights advocates, including Public Knowledge and the Electronic Frontier Foundation, take issue with the argument -- advanced by Aereo's critics -- that the company's tiny-antenna system is a “sham,” designed solely to take advantage of a loophole in copyright law.

“The supposed inefficiency of Aereo’s multiple-antenna system as compared to cable systems has no bearing on whether Aereo’s technology enables private or public performances,” the digital rights groups write. “Attempting to distinguish 'legitimate' from 'sham' innovation would place the Court in the role of technology regulator, attempting to decide the worth of a given technology.”

The groups add that many technologies can be valuable even if with seemingly inefficient features. “Aereo’s technology has the potential to bring new viewers to broadcast TV, increasing advertising revenues and allowing broadcast programming to better compete against cable programming,” they argue.

The law professors say in their brief that Aereo's system is the “functional equivalent” of the Sony Betamax -- which was allowed by the Supreme Court decades ago. “Consumers use [Aereo] to record television programs for subsequent playback to themselves. In copyright terms, these are reproductions subject to the Copyright Act, many of which are likely protected as fair uses,” a group of 36 law professors argue.

Last month, the White House weighed in against Aereo, arguing that the company infringes copyright by retransmitting programs without licenses. The Department of Justice says that Aereo's streams are “public” performances, because Aereo transmits the same program to numerous people.



5 comments about "Aereo Draws Broad Support In Battle With Broadcasters".
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  1. Steve Symonds from Symonds Associates, LLC, April 3, 2014 at 5:16 p.m.

    Aereo's technology is a sham and it is moronic to argue that the SOTUS should not take that into account. Google "Faraday Cage". Duh. But phony technology aside, this case has to do with copyright law pure and simple. The Beta Max case is a head-fake - as is Sling Box. This has nothing to do with "personal use". If I buy an antenna in a Radio Shack - or a Sling Box - I own the electronics and can either watch broadcast nets or record my programs for my own use at a later date. No problemo. Anyone paying Radio Shack a monthly subscription fee for those rabbit ears? Of course not. Ditto, Sling Box. Aereo is collecting monthly subscription fees...for retransmitting the broadcast networks...without negotiating a license for the rights to do so. Copyright law must be upheld, pirates must pay to play or go home.

  2. Richard Reisman from Teleshuttle Corporation, April 3, 2014 at 5:39 p.m.

    I completely disagree with Steve Symonds' comment. This is a simple case about use of public airwaves, using spectrum granted for the quid pro quo of making broadcasts freely available to the public. Why should broadcasters be paid for retransmission of their over the air signals? They are free to stop broadcasting and reliquinquish the spectrum that was granted to them for the public good, if that bargain no longer appeals to them. The technology details are immaterial, "sham" or not.

  3. J S from Ideal Living Media, April 3, 2014 at 8:11 p.m.

    I agree with Richard. In Utah, the only place a judge has ruled against Aereo, several counties rebroadcast all the DMA's stations -- without license -- and have for 50 years (including being completely redone during the digital transition). The experts seem to have spoken, on Mediapost, and in the courts, and Aereo has this in the bag.

  4. Michael Kilgore from, April 4, 2014 at 12:14 p.m.

    Aereo's technology is crazy and inefficient, and Aereo built it that way precisely to stay on the right side of the crazy copyright law. A more logical approach, considering broadcasters' over-the-air monopoly and their promise to serve their viewing public, would be to allow any OTA signal to be retransmitted without anyone's permission. Add a payment to a pool to compensate content creators and you've got the Canadian system.

  5. Leonard Zachary from T___n__, April 10, 2014 at 9:55 a.m.

    Broadcasters do not innovate but rather protect their retransmission fee model which is not free markets but corporate welfare. Cable Companies are subsidizing retran fees with broadband subscribers revenue given payTV subs are flat to down and viewership of the big TV screen is being taken over by the OTT services. Broadcasters are poorly positioned with technology and the wireless carriers and cable companies that control the last mile are not. Bottom line: Broadcasters should make a commercial deal with Aereo.

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