Aereo Hopes To Go On As 'Cable System'

In the wake of the June 25 Supreme Court decision, the online distributor of broadcast signals is taking a new legal tack: it's a cable system and entitled to the compulsory license just like any conventional cable system. In making the argument, Aereo cites the high court's finding that Aereo is "for all practical purposes" a cable system. Arguing for an immediate injunction against Aereo, broadcasters said Aereo's new argument is "astonishing," given its past insistance that it was not a cable system.

Aereo is not giving up the fight, not just yet.

The online purveyor of broadcast signals has come up with a new theory for why it should not be shut down for copyright violations as broadcasters have been demanding.

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The theory: it's a cable system and entitled to the compulsory copyright license just as any conventional cable system is.

In its June 25 ruling, the Supreme Court rejected Aereo's claim that is was an antenna rental service and as such did not incur any copyright liability.

But in doing so, the high court said repeatedly that Aereo was similar to a cable system. It said that Aereo is "substantially similar" to, has an "overwhelming likeness" to, and "is for all practical purposes a traditional cable system."

Seizing on that language, Aereo, in a joint "next steps" letter to a New York district court yesterday, said it would do business going forward as a cable system. The district court is deciding whether to enjoin Aereo from operating.

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"The Supreme Court's holding that Aereo is a cable system under the Copyright Act is significant because, as a cable system, Aereo is now entitled to the benefits of the copyright statutory license pursuant to the Copyright Act," Aereo said.

"Aereo is proceeding to file the necessary statement of account and royalty fees," it added.

Aereo asked the court for an immediate ruling on its eligibility for the compulsory license. Aereo's survival is in "jeopardy," it said. In the wake of the Supreme Court ruling, Aereo said it has suspended operations. "Aereo is taking in no new revenue, and continuing to incur enormous costs such as employee salaries, equipment and lease payments and vendor payments."

Still celebrating their victory over Aereo at the Supreme Court, broadcasters, in their half of a joint letter to the court, said it was "astonishing" that Aereo was now portraying itself as a cable system after repeatedly insisting throughout the litigation that it was not.

In any event, the broadcasters said, the court should not delay in shutting down Aereo. "That is the most important next step."

Aereo also raised yet another defense in the district court letter. "The Supreme Court held that Aereo only publicly performs and liable for copyright when it transmits broadcast programming at the same time it is broadcast.

"If the court finds the compulsory license does not apply, any injunction must be limited to simultaneous or near-simultaneous streaming — the Supreme Court did nothing to prohibit — and indeed reaffirms the vitality of — non-simultaneous playback from copies created by consumers."

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Comments (7) -

Roger Thornhill Nickname posted over 2 years ago
Broadcasters need to give this whole issue a rest. They won. Let Aereo live on as an MVPD if it can. Right now we have a much more serious battle to wage: the proposed confiscation of our spectrum by the FCC and its accomplices, the bloated, cash-heavy telcos, Silicon Valley raptors and pay-TV companies.
FlashFlood Nickname posted over 2 years ago
Yes, D BP, enough is enough! Remember, we lost 70-83 back in the late '70s or early '80s, Then with the digital conversion in 2009, we lost 52-69 as well. We need to KEEP the channels we STILL HAVE. Now!!!
nefnet Nickname posted over 2 years ago
If Aereo will play ball and pony up reasonable retrains fees, why would we as an industry want them to be shut down? Any Aereo sub that isn't subscribing to cable is a HUGE win for local broadcasters. Online video use isn't going away, and is going to continue to grow as an increasing part of people's video diet. That's more competition for us, which is bad, but as I said there's nothing to be done about that. But the cable guys should be worried about Aereo, which could create more cord-cutters as people find they can get by fine with online video and their local broadcast stations. That's better for broadcasters than competing with online AND the universe of cable nets out there, right? Where is the downside I am not seeing?
Insider Nickname posted over 2 years ago
Broadcasters want to cut out the likes of Aereo online and do it for themselves. Unfortunately, technology is moving at a rapid pace and Broadcasters do not.
SlinginSpots Nickname posted over 2 years ago
Agreed with nefnet. If they pay up, let them play ball. And when they become big enough to generate advertising revenue that will move the needle, offer them a ton of cash and roll them up into the portfolio.
TVEng Nickname posted over 2 years ago
Broadcasters can move their technology forward at a rapid pace, the FCC prevents them from doing that.
Insider Nickname posted over 2 years ago
Please point to a FCC regulation that is keeping Broadcasters from streaming their own station online, whether it be at free or for a fee.
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Overnights, adults 18-49 for September 22, 2016
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