Tired of Being Sued, Aereo Won't Oppose Cert; Asks for Clarity on Public Performance

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By Tamlin H. Bason  

Dec. 13 --Although there is no circuit split on the issue and every court to have reviewed Aereo's system to date has found it to be non-infringing, Aereo nonetheless declined to oppose the broadcasters' bid for Supreme Court review.

“Even though the Second Circuit decided that issue correctly, petitioners have signaled their intention to wage a war of attrition by re-litigating this issue in every market to which Aereo expands its business,” the service said in its brief filed with the Supreme Court Dec. 12. “Accordingly, Aereo believes it is appropriate for this Court to grant review to affirm the decision below.”

Networks Seek Review of Second Circuit Decision

In October, a group of television networks filed a petition for writ of certiorari challenging the Second Circuit's determination that Aereo's service was not infringing. American Broadcasting Companies, Inc. v. Aereo, Inc.(U.S., No. 13-461, review sought 10/11/13) (200 PTD, 10/16/13). Specifically, the petitioner challenged the Second Circuit's determination that Aereo does not “publicly perform” a broadcast when it transmits a copyrighted television program to thousands of individual Internet subscribers. That determination, the broadcasters said, constitutes “nonsensical reasoning [that] cannot be reconciled with the plain text of the Copyright Act or Congress' manifest intent to include retransmission services within the scope of the public-performance right.”

The petition identified the question presented as:

Whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.  


In July, the Second Circuit denied a petition for rehearing en banc (137 PTD, 7/17/13) that challenged a panel determination that Aereo did not publicly perform the networks' content (63 PTD, 4/2/13). That holding in turn rested on the Second Circuit's 2008 decision in Cartoon Network LP v. CSC Holdings Inc., 536 F.3d 121, 87 U.S.P.Q.2d 1641 (2d Cir. 2008) (151 PTD, 8/6/08), which is commonly known as Cablevision.

In the petition, the networks urged the court to overturn Cablevision's interpretation of Section 101's transmit clause. 17 U.S.C. §101. Although there is not yet a circuit split, the petition noted that services similar to Aereo's have been found infringing by district courts that are not bound by Cablevision. Those cases are Fox Television Stations Inc. v. BarryDriller Content Sys. PLC, 915 F. Supp. 2d 1138 (C.D. Cal. 2012) (02 PTD, 1/3/13), and Fox Television Stations, Inc. v. FilmOn X LLC(D.D.C. 2013), 2013 BL 243147 (176 PTD, 9/11/13). However, the District of Massachusetts on Oct. 8 declined to enjoin Aereo's Boston service and hinted that it agreed with Cablevision's interpretation of a public performance. Hearst Stations Inc. v. Aereo, Inc., 2013 BL 282327, 108 U.S.P.Q.2d 1712 (D. Mass. 2013) (198 PTD, 10/11/13).

Aereo Seeks to Staunch Continuous Filing of Suits

The networks vowed, following their initial loss at the Second Circuit, to use litigation to prevent Aereo from expanding. Indeed, the Massachusetts suit was filed shortly after Aereo launched its Boston service and Aereo faces a similar suit in Utah. Nexstar Broad. v. Aereo, Inc., No. 13-cv-00975, (D. Utah, complaint filed Oct. 24, 2013).

Aereo cited the threat of continued litigation as a reason for its support of Supreme Court resolution of the public performance issue. Aereo's brief said:

The need to litigate multiple cases has not only imposed a direct financial burden on Aereo but also created uncertainty that undermines Aereo's efforts to expand its footprint and further develop its business. The risk of protracted and unnecessary litigation warrants this Court's resolving the legality of Aereo's system at the earliest practicable time.  


Aereo: Take This Case, Not FilmOn or BarryDriller

Aereo noted that although its service has repeatedly been found non-infringing, its competitors have not been so fortunate. However, Aereo claimed that the Second Circuit's decision was based on a much more robust record than was present in FilmOn and BarryDriller.

“That deficiency is particularly acute in the BarryDriller case now under submission after oral argument in the Ninth Circuit,” Aereo said. Thus, “If a circuit conflict were to develop out of one of those cases, the resulting decision would not reflect nearly so detailed a factual record as this case,” Aereo said.

Transmission Goes to Single Users, Not Public

Aereo identified the question presented as:

Whether Aereo “perform[s] publicly,” under Sections 101 and 106 of the Copyright Act, by supplying remote equipment that allows a consumer to tune an individual, remotely located antenna to a publicly accessible, over-the-air broadcast television signal, use a remote digital video recorder to make a personal recording from that signal, and then watch that recording.  


Aereo argued, “A unique copy of a performance of a work, created at the direction of the user, is transmitted only by and to that user.” In Aereo's view, its service does not constitute a public performance and so it urged the Supreme Court to affirm the Second Circuit's decision.

Aereo is represented by David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C. The networks are represented by Paul D. Clement of Bancroft P.L.L.C., Washington, D.C.


Aereo's brief is available at http://pub.bna.com/ptcj/13461AereoDec1213.pdf

The networks' petition is available at is available at http://pub.bna.com/ptcj/ABCvAereo_11Oct13.pdf.


To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Naresh Sritharan at nsritharan@bna.com

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