Cablevision Joins Aereo Fight

Backs broadcasters in legal showdown over payments for signals

Cablevision has no trouble hammering broadcasters hard
over their signals when the issue of retransmission consent is on
the docket. But the company sang a much different tune last week,
making a staunch defense of those broadcast signals in the Aereo TV case.

Broadcasters are suing Aereo, the Barry Diller-backed subscription service
that provides mobile users access to timeshiftable
Web versions of broadcast signals in
New York City for a monthly subscription.

Aereo says it is simply providing remote
access to a TV antenna, which viewers are
entitled to, along with the ability to record
and play back that signal, which they say
their customers are also entitled to per the
Sony Betamax case that established a right
to home videotaping. Broadcasters say that
a loss in this case could lead to a crumbling
of their entire business model.

The broadcasting argument suggests that
Aereo is trying to retransmit signals without
compensation in violation of copyright law.
A New York district court denied broadcasters’ request for a temporary
injunction against Aereo while that court decides the case, prompting
those broadcasters to seek a reversal of that decision by the Second Circuit
Court of Appeals.

The case has already made some strange bedfellows, linking Fox with
PBS in the suit. Now, enter Cablevision, which last week filed a brief
backing broadcasters.

Cablevision’s name already appears frequently in the Aereo case file.
In 2008, the same Second Circuit Court of Appeals handed Cablevision
a signi! cant victory when it overturned a lower court and said the company
was allowed to provide remote DVR functionality to its customers
by using massive servers at its head-ends to record programming instead
of giving them expensive set-top boxes with hard-disk recorders.

Cablevision says it doesn’t think its court victory over programmers in
the remote DVR case should extend to Aereo’s model. Aereo says it too is
providing remote antenna farms combined with DVR functionality and
need not pay for the privilege.

In a brief to the Second Circuit supporting broadcasters’ efforts to get
that lower court decision reversed, the cable operator said 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 decision appears central to the
current case. In denying the injunction, the district court found no appreciable
difference between Aereo and Cablevision’s remote DVR. In
fact, the court relied heavily on that precedent, with the judge saying
that without that decision, the broadcasterplaintiffs
would likely have prevailed in their
request for a preliminary injunction.

Cablevision argues that even with that decision,
Aereo should be stopped.

“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,”
Cablevision said last week. “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 already has some experience in taking public issue with
an over-the-top video service invoking its court victory in hopes of
securing its own.

Last July, when studios were battling online movie service, Zediva,
Cablevision also weighed in to argue that while its DVR represents a
customer accessing a show he or she had chosen to record remotely,
Zediva was instead operating more like a video-on-demand service that
chooses individual movies to make available for a price.

Aereo, Cablevision argued, is operating like a cable operator, receiving
over-the-air signals and retransmitting them for a fee. Cablevision obviously
has a player’s interests in not having to compete with someone who gets
their content gratis, while cable operators have to pay significantly for it.

Broadcasters are certainly hoping their case takes a similar route to the
one against Zediva. A judge ultimately enjoined Zediva from operating, finding little merit in its arguments.

In October 2011, Zediva agreed to pay the studios $1.8 million and
promptly closed up shop.

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