• by Wendy Davis , Staff Writer @wendyndavis, October 15, 2014

Broadcasters today told U.S. District Court Judge Alison Nathan in Manhattan that online video distributor Aereo should be prohibited from offering its real-time streams as well as its remote DVR service.

They argue that they face “irreparable harm” if cord-cutting companies like Aereo can siphon viewers away from cable, which pays hefty retransmission fees.

Not surprisingly, Aereo asked Nathan to allow the company to continue to offer both services.

While it's impossible to predict how Nathan will rule, there's at least a chance that she'll split the difference and allow Aereo to offer its remote DVR service, which enables subscribers to “record” over-the-air television shows and watch them later.

Why would she issue that kind of ruling? For one thing, the broadcasters themselves requested that order two years ago. In fact, Nathan started off the hearing by suggesting that she wanted to turn back the clock two years, and issue the order that broadcasters sought at the time.

“If the injunction is broadened, what would be the basis?” she asked an attorney for the broadcasters.

The injunction -- as requested in 2012 -- would have prohibited Aereo from streaming programs while in progress and for 30 minutes afterward, but allowed the company to offer its remote DVR service.

Nathan denied that request two years ago, when she ruled that Aereo's system probably didn't infringe copyright. The broadcasters appealed that ruling to the 2nd Circuit, which upheld Nathan by a vote of 2-1, and then to the Supreme Court. That court ruled 6-3 in June that Aereo's real-time streams are infringing.

At the time, the Supreme Court made a point of stating that its ruling only addressed Aereo's real-time transmissions, and not its time-shifting, device-shifting DVR service. That makes sense, given that the Supreme Court based its decision on amendments to the copyright law passed in 1976 -- well before time-shifting devices became commonplace.

Nathan said today that she will issue a ruling “promptly.”  However she rules, it seems likely that the losing side will appeal again.

In many ways, one of the most striking aspects of this case is that it shows how slowly the legal system adjusts to new technology. At this point, lawyers for both sides have spent years arguing about how to interpret a 1976 copyright law -- passed long before anyone likely used the term “cord-cutting.”

Even now, the industry is developing in ways that broadcasters might not have foreseen a few years ago. This morning, as the broadcasters were asking Nathan to shut down Aereo, the ground was shifting beneath their feet: HBO said it will offer a streaming-only option starting next year.

Whether Aereo encouraged cord-cutting was always up for debate, given that the service mainly streamed over-the-air TV, which users can access without a cable subscription. But a standalone HBO service will almost certainly encourage cord-cutting by enabling viewers to watch shows like “Girls” and “Game of Thrones” without also purchasing cable video packages.