The American Cable Association says that the public's freedom to "receive" a performance is at issue in the Aereo case, and that freedom should not be sacrificed to protect entrenched interests.
In its amicus brief to the Supreme Court, which is hearing oral argument April 22, ACA says it does not believe Congress created a right to transmit public performances that does not allow consumers to receive over-the-air transmissions via anything except their own home antenna.
Aereo uses banks of antennas and servers assigned to individual subscribers to allow for access to TV station signals and DVR functionality over the Internet.
ACA says that the right to perform a public work does not include a right to limit who can access that licensed work, and how.
As to broadcaster arguments that Aereo is similar to a cable operator, which must pay copyright and retrans fees (for retrans stations), ACA says no way. "Aereo functions more like a DVR retailer or antenna installer," it says. "By facilitating reception of broadcast programming, it may reduce demand for a cable television service subscription, but it does not function like cable." ACA adds that unlike cable ops, Aereo does not own the network facilities, but rides "over the top." The FCC has yet to rule on whether or not facilities are required to be an MVPD, but it has tentatively concluded that to be the case.
Not surprisingly, ACA worked in a shot at the retransmission consent regime as part of its argument.
"ACA members welcome the development of new technologies that allow their customers to have better reception of free over-the-air local television broadcasts, thereby creating a modest safety valve against what smaller cable companies consider to be unfair and oppressive retransmission consent rates extracted by threat of blackouts that would leave customers with a 'dark' channel unless untoward price demands are met."
Some ACA members have said they have considered the Aereo model if it would help them get out from under the retrans fees they say are unfairly high and a threat to their business model. "Third-party technologies like Aereo’s can benefit smaller cable operators by matching the functionality that larger cable companies such as Comcast and Cablevision can provide in-house, while at the same time giving their 'cord-cutting' subscribers options for tuning in to local broadcasts," said ACA.
In the 1976 Copyright Act, says ACA, "Congress did not take away the public’s right to tune in to free over-the-air transmissions of public performances, did not establish a new right of 'transmission' in addition to the existing right to perform the work publicly, did not diminish the right to 'time-shift' free over-the-air programs for later viewing, and did not grant a copyright in how television signal reception or DVR technology may develop. Congress intended to encourage commercial dissemination of local broadcasts."
One of the anti-Aereo arguments has been that a decision upholding it would wind up violating some international treaties, but ACA says that tail should not get to wag this dog. "Congress’ exclusive constitutional power to grant exclusive rights to authors may not be supplanted by Executive Branch treaties or judicial gloss that seeks to harmonize an Act of Congress with international trends."