Studios Slam Aereo As Bringing Chaos to Content

Forces aligning to battle streaming service say a green light could court disaster for broadcasters

Why This Matters

If Aereo survives a court challenge, high-value content may defect from broadcast TV.

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Studios and defenders of copyrights are lining up behind broadcasters in their fight against TV streaming service Aereo, a battle they all say will determine the future of high-value content on broadcast TV, while potentially leading to an alternative flight to pay platforms such as cable TV.

Friend of the court briefs—or, in this case, more like “friend of the broadcasters briefs”—have been filing into the Supreme Court. At presstime, the attorneys for Aereo had no copies of briefs supporting their side, but they pointed out that the court’s 30-day extension on Aereo’s response to broadcasters’ request that the High Court hear the case meant supporting briefs were also delayed 30 days—until Dec. 12.

The NFL and MLB have warned the court that a decision in favor of allowing Aereo to deliver TV station signals to the subscribers without paying for that programming likely means that sports, which are considered non-substitutable, high-value local content (just ask any sports fan denied access to their local team’s games) would have to move off broadcast TV.

One consequence, if the court ruled before the FCC incentive auction, could be to push more broadcast spectrum into the pot, given that a flight of content would darken the horizon for an industry already under FCC pressure to move out. It would also threaten a huge chunk of gross domestic product, according to a just-released study by the International Intellectual Property Alliance, which pegs content creation and distribution by “core” copyright industries such as TV, movies, music and software at north of $1 trillion annually.

According to those filings, there are many entries in a “parade of horribles”—legal talk for all the bad outcomes—broadcaster fans say could result from an Aereo win.

Major content companies Viacom and MGM teamed with the Independent Film & Television Alliance—a group they are not always on the same page with—and a number of entertainment guilds and unions to warn the court.

Calling Aereo a “Rube Goldberg-like contrivance,” they argue the service threatens the “windowing” model of different distribution platforms, with broadcast often the first window. (Aereo sees it as more of a Ben Franklin-like innovation that allows users to remotely access their free TV signals via the Web.) That model not only compensates the big players, the unions point out, but also the writers, directors, casts and crews they represent. “Residuals are a crucial source of income that can be the lifeblood of individuals whose work is intermittent by its very nature,” the parties said in their brief. They also suggested the Aereo model threatens pensions and health care plans.

Lawyer-Created Loopholes

In a separate brief, Time Warner/Warner Bros. anticipated Aereo defending itself as a tech innovation for consumer convenience. Hardly the case, said Time Warner, stating: “No reasonable company would have deployed Aereo’s armada of mini-antennae but for the desire to end-run the public performance right.”

Time Warner says the lone innovation is a legal one, though it suggests it is not innovation but evasion, specifically “the idea that making millions of copies of a television show is not making any copy, and the idea that transmitting a television show to millions of unrelated people is a private, not a public, performance.”