Variety reports [via GigaOm] that the broadcasters, who allege that Aereo violates their copyright by collecting freely available over-the-air network feeds and then making them available online to paying subscribers, will petition the Supremes within the next week for their case to be heard during the current term ending in June 2014.
Aereo’s position in the lawsuits is that the network feeds are collected by tiny antennae, each dedicated to a single subscriber. The company maintains that this is no different than an individual placing an antenna on her roof to better receive a freely broadcast TV signal.
The broadcasters have previously asked courts for a preliminary injunction against Aereo that would take the service offline pending trial, but a federal appeals court denied the motion, explaining that the networks “presented no reason why the result should be any different when that rooftop antenna is rented from Aereo and its signals transmitted over the internet: it remains the case that only one person can receive that antenna’s transmissions.”
The broadcasters were recently dealt a blow in Boston, where a federal court also decided against an injunction.
This effectively means that Aereo can remain in business so long as the case is pending (and so long as it has subscribers and investors), and while various district courts issue rulings (all of which will be appealed by whichever side loses).
FOX stations in Utah recently filed a lawsuit against Aereo there following the launch of service in Salt Lake City. Aereo referred to this suit as a “mulligan,” saying that Fox “is simply not entitled to repeated do-overs on this matter.”
These region-by-region suits and injunction request will continue as Aereo expands its market base. Given the time it can take for even the most urgent matter to be resolved in the court system, the broadcasters appeal to be rolling the dice in the hopes that they can just get to the inevitable Supreme Court hearing already.
Broadcasters have been successful in Los Angeles and Washington, D.C., in blacking a similar streaming service, FilmOn. It’s possible that the networks will make the case that the Supreme Court needs to rule ASAP in order to resolve the differing opinions of the federal courts, but we’d expect that Aereo would argue, as it has done before, that it’s technology is different from the tech used by FilmOn and thus the L.A. and D.C. injunctions do not apply.
This Supreme Court demonstrated with the Affordable Care Act — without argument a more pressing and divisive matter — its reluctance to allow cases to be heard without going through the usual steps, so it seems unlikely that the justices will feel compelled to hear the Aereo case.
Execs from both CBS and Fox have publicly stated they would pull their network feeds from the air and go cable-only if Aereo is successful in court, though they never clarified if this would be nationwide or only in markets served by Aereo.