Aereo suspended its online streaming service days after the Supreme Court ruled against the company. But to the obvious chagrin of broadcasters, the Barry Diller-backed cord-cutting company is obviously hoping to find a way to continue with its business.
Not only is Aereo now arguing that it's a “cable system” and entitled to a compulsory license, but the startup is also trying to pave the way to resume its DVR service. Until last month, Aereo offered an $8 a month service that allowed users to stream over-the-air television shows in real time to their smartphones, tablets and other deivces. The company also let users “record” shows for playback at a later date.
Last week, Aereo asked the 10th Circuit Court of Appeals to lift an injunction prohibiting the company from operating its DVR service. In response, a coalition of broadcasters says the court should reject Aereo's request on procedural grounds: The broadcasters say that the federal appeals court shouldn't consider Aereo's argument now, because it didn't raise the issue to U.S. District Court Judge Dale Kimball in Utah, who issued the injunction in February.
“Aereo ... made strategic decisions not to present certain arguments to the District Court, and now that it has lost in the Supreme Court it wants to make these 'Plan B' arguments for the first time in this appeal,” the broadcasters say in papers filed late last week.
Procedural technicalities aside, Aereo's argument ultimately could gain traction on the merits. Consider, the Supreme Court specifically said it wasn't ruling on the company's cloud-based DVR service, which enabled subscribers to “record” over-the-air television and watch it later.
Instead, the Supreme Court ruled that the live streams violated the broadcasters' copyrights. But the Supreme Court based its decision on a revision to the Copyright Act passed in 1976 -- well before the widespread adoption of VCRs or other time-shifting devices.
It's not at all clear that those 1976 revisions would have an impact on whether Aereo's time-shifting technology infringes copyright. In fact, the Supreme Court ruled in 1984 that using VCRs to time-shift programs is a fair use that doesn't infringe copyright.
Aereo has never said how many of its estimated 77,000 subscribers primarily used the service more for its DVR functionality than to stream live telvision. But presumably, that figure was high enough for the company to decide it's worth fighting for the right to offer the service.