Friends of Aereo are lining up in court to back its service
for delivering broadcast TV to iPhones and other screens.
Public Knowledge earlier signaled its plans to file an
amicus (friend of the court) brief supporting the Barry Diller-backed service
and the Computer and Communications Industry Association and Internet
Association have already filed a brief with the U.S. Court of Appeals for the
Second Circuit backing Aereo and opposing broadcasters' petition for an
injunction from that court.
The crux of Aereo's argument is that "where a
transmission is made to a single consumer using a unique copy available only to
that consumer, it is not a performance ‘to the public,' and therefore does not
infringe any exclusive right of public performance."
The crux of broadcasters' counter argument is that "the
unauthorized retransmission of over-the-air television broadcasts, through any
medium, violates the public performance right set forth in the Copyright
Act."
A New York District Court denied a broadcaster request for
an injunction in July, saying Aereo was essentially analogous to the
Cablevisions' remote DVR functionality, which the Second Circuit upheld in the
Cartoon Network vs. Cablevision case.
Broadcasters, including ABC, CBS, NBC and noncommercial
WNET, filed a petition with the Second Circuit Court of Appeals Sept. 14 saying
the lower court was off base and they should be granted the injunction. Aereo
then countered that argument in an Oct. 19 filing, saying that if broadcasters'
complaint is upheld, "every consumer who watches live programming through
her DVR to enable pause and rewind functionality will be at risk of liability
for an infringing public performance." That led to the amicus brief
filings in support of Aereo this week, which were due at the end of day Friday,
Oct. 26.
CCIA membership comprises computer companies, Web companies
and mobile broadband and satellite service providers including Microsoft, Google,
DISH, and Sprint. Internet Association members include Amazon.com, Facebook and
IAC, which is headed by Aereo backer Barry Diller.
CCIA and the Internet Association say their members have
invested in cloud computing based on the Second Circuit's ruling in Cartoon
Net/Cablevision case that a transmission made by a user from a remote DVR to
themselves is a private, not public performance.
Aereo provides remote off-the-air antennas associated with
individual subs. The antennas allow for distribution of those TV station
signals -- including DVR functionality -- to those subs' computer screens and
mobile devices.
CCIA and the Internet Association oppose the legal effort to
block Aereo, but also say Congress, not the courts, is the best place to decide
the issue.
"TV broadcasters are essentially complaining that Aereo is
disrupting their existing business model," said CCIA President Ed Black
explaining the group's support. "However, in the past, the Supreme Court
has recognized that it is best for Congress to decide whether or not it is
desirable to expand protections of copyright owners to respond to changes in
technology. We agree that Congress, rather than the court system, would have
more flexibility to address TV broadcasters complaints without creating
uncertainty for Internet innovators and investors.
