• by Wendy Davis  @wendyndavis, April 17, 2014

A coalition of broadcasters is asking the Supreme Court to reject Aereo's contention that its service merely offers consumers the equivalent of an antenna-DVR combination.

Instead, Aereo's service actually is more like a copy machine that comes “pre-loaded with unlicensed materials,” the broadcasters argue in their latest attempt to convince the Supreme Court to shut down the Barry Diller-backed company.

The broadcasters are suing the 2-year-old Aereo for allegedly infringing copyright by retransmitting programs without paying licensing fees. The Supreme Court will hear arguments on Tuesday about whether the service is legal.

Aereo allows people to watch over-the-air television on iPhones, Androids and other devices. The company also allows people to record shows for later viewing. Aereo says it's legal due to its design, which relies on antennas to capture programs and then stream them to users.

But the broadcasters say that Aereo's system offers “public” performances, on the theory that it streams the same content to many viewers at the same time. Aereo says that each stream is private, because it comes from a separate antenna.

Broadcasters have asked judges in federal courts throughout the country to shut down Aereo, with varying degrees of success. Judges in New York and Boston sided with Aereo, but a judge in Utah ordered the company to stop operating in six Western states.

The Supreme Court is expected to decide by June whether to allow the service to continue.

Aereo has argued that its service merely offers the technology to allow consumers to watch over-the-air television and make personal copies of the programs. The startup said in court papers that its service allows people “to access broadcast programming using an Internet-connected device coupled with a remotely located, individually assigned antenna and segregated video storage.”

But the broadcasters argue in reply papers filed this week that Aereo “is in the business of retransmitting performances of the copyrighted works of others to the public for a profit.” The broadcasters also argue that Aereo does not engage in private performances, despite “its Rube Goldberg-like contrivance of miniature antennas.”

The broadcasters also ask the Supreme Court to reject Aereo's theory that its service is similar to a combination of DVR and antenna. “A normal copy machine is useless unless the user has something to copy. The same is true of a VCR or DVR -- neither can be used to record a program to which the user has no access,” the broadcasters contend. “Aereo is more like a copy shop that provides access to a copy machine fully pre-loaded with copyrighted works ready to copy at the push of a button.”

In a surprise development in the case, Justice Samuel Alito on Wednesday said he will participate in the matter. Before, he had indicated that participating in the case would pose a conflict of interest. Alito's move eliminates the possibility of a 4-4 split, which would leave in place the pro-Aereo ruling issued by the 2nd Circuit Court of Appeals.