Skip to main content

Aereo and broadcasters spar ahead of do-or-die Supreme Court trial

Aereo and broadcasters spar ahead of do-or-die Supreme Court trial

Share this story

Aereo is trying to win over public support ahead of its big battle with broadcasters in the Supreme Court next week. The service, which allows customers to stream broadcast TV on demand, has launched a website called Protect My Antenna to explain how Aereo works and what challenges it's facing in the court. Aereo CEO Chet Kanojia also sat down for a lengthy interview with Katie Couric, which includes with a lengthy explainer on how Aereo works and why it believes those methods to be legal too.

Aereo and broadcasters continue arguing the same points

The court battle, which has been brought by a consortium of broadcasters including Disney, NBC, Fox, and CBS, revolves around whether Aereo should be paying fees for recording freely broadcast TV shows on the behalf of its customers and then streaming those recordings to their specific computers, phones, and tablets. In most situations, companies have to pay retransmission fees for taking broadcasters' content and making it available to their customers, but because Aereo's antennas capture unique copies for every user, it argues that it's simply offering infrastructure that allows viewers to watch and make copies of broadcasts in ways that they're already legally allowed to do.

It and the broadcasters have been sparring through Supreme Court briefings for the past several months, with the broadcasters receiving big help through an amicus brief from the White House, which has also requested permission to argue alongside them in court. According to a document published by Deadline, the broadcasters' latest brief was filed Monday as a retort to arguments made by Aereo in an earlier brief. The conversation has largely remained the same, with the parties primarily arguing around two specific points, both of which focus on a small clause within the Copyright Act.

The critical factor seems to be whether Aereo's TV streams can be considered public performances, which would require it to pay fees. Aereo has argued that it is not doing so because it is providing a personal stream for every viewer and because it is simply facilitating customers' creation of their own recordings — both of which would make Aereo's customers the performers, which would not require fees. Broadcasters argued back this week that the Copyright Act accounts for complex setups like Aereo's that seemingly shield it from fees. They also argued that the court has previously found retransmitting content to be a public performance no matter what role a customer plays in the process.

"A copy machine that came preloaded with unlicensed materials would hardly escape copyright liability," the broadcasters argue.

Though the viability of Aereo's business rests on this case, the company has spoken confidently about its chances in court and continues to say that it expects a positive outcome. On its side are earlier court rulings, which have largely found its service to be legal. It appears to be hoping that having the public on its side will help sway the court too, though time to garner support is increasingly limited.

Media mogul and major Aereo backer Barry Diller also took time to discuss the coming case yesterday, agreeing with The Hollywood Reporter that Aereo would be done for if it loses. He's previously expressed the same sentiment to Bloomberg, saying, "It's very possible that there’s some salvage, but Aereo would probably — as I say probably just because I can’t see any path forward — it probably would not be able to continue in business." He's also less confident than Aereo itself about the case's outcome. "t would be awful to shut off what is clearly, without I think argument, technology that might benefit a consumer," Diller tells the Reporter. "But it more than may happen."