Cablevision Backs Broadcasters in Aereo Challenge

Tells appeals court it is materially different from its remote DVR service court victory

By John Eggerton -- Broadcasting & Cable, 9/24/2012 11:26:00 AM

Cablevision, for one, doesn't think its court victory over programmers in the remote DVR case should extend to Aereo.

The Barry Diller-backed subscription service provides mobile users access to time-shiftable Web versions of broadcast signals in New York City for a monthly subscription. In response, broadcasters sued Aereo citing copyright violations because the company did not get their permission to retransmit the signals or pay them for their content.

A judge in the Second District of New York denied a request to shut down the service while it hears the case, a decision broadcasters are challenging in the Second Circuit Federal Appeals Court.

In a brief to the Second Circuit supporting broadcasters' effort to get that lower court decision reversed, the cable operator says Aereo "seeks an expansion of Cablevision's public-performance holding that would extend it far beyond the case's facts, beyond its rationale, and in contravention of settled industry expectations."

The applicability of the Cablevision Case appears central to the current case. In denying the injunction, the district court found no appreciable difference between Aereo and Cablevision's remote DVR, which the Second Circuit court of appeals concluded did not violate copyright protections. In fact, the court relied heavily on that precedent, with the judge saying that without that decision, plaintiffs -- broadcasters -- would likely have prevailed in their request for a preliminary injunction.

"Contrary to the district court's holding, Aereo's system is nothing like -- much less 'materially identical' to -- the [Cablevision remote DVR system] for copyright purposes. Unlike Aereo, Cablevision operates a licensed cable system that retransmits content to subscribers pursuant to agreements with content providers. In addition to and separate from providing that licensed cable system, Cablevision also offers technologies that enable its subscribers to record television programs for later viewing." By contrast, it says, "Aereo's hard-drive copies perform a role that is neither operationally meaningful nor independent from Aereo's real-time transmission service."

Cablevision also filed a brief in support of programmers last July in their legal fight with online movie service, Zediva.