Everyone expected broadcasters to petition the Supreme Court to review their copyright infringement case against Aereo. On Friday, broadcasters lived up to the expectations. All the major network TV owners including ABC, Disney, CBS, NBCUniversal, Telemundo, Fox Television Stations, Univision Television, Public Broadcasting Service and WPIX (owned by Tribune) filed a writ of certiorari with the high court.
Aereo has been the bane of broadcasters' existence since it launched a year and a half ago by offering consumers streams of local broadcasters' signals over the Internet for about $8 a month. But unlike cable or satellite services, Aereo pays broadcasters nothing.
"Today's filing underscores our resolve to see justice done. Make no mistake, Aereo is stealing our broadcast signal," said a Fox spokesperson. "As do so many businesses both large and small, broadcasters rely on enforcement of the law to receive fair value for the high-quality news, sports and entertainment we create and in turn deliver to millions of Americans each day."
Broadcasters haven't done so well in court against Aereo, having been denied requests for injunction against the service in New York and most recently in Boston on Thursday. But broadcasters did succeed in Washington, D.C., against an Aereo copycat service called FilmOn, which used similar technology to stream local TV programming.
Because the rulings in different jurisdictions conflict, broadcasters are looking to the Supreme Court to settle the cases once and for all.
At the heart of the case is whether or not Aereo can get around copyright rules by arguing that it is merely renting a tiny personal antenna to subscribers in order to stream the local stations.
Broadcasters have called the technology a "gimmick," but they've found themselves legally trapped by a 2008 court ruling in New York over Cablevision's DVR cloud-based service that was ruled a private performance, not a public one. Aereo says its individual antennas are providing a private performance and therefore do not have to be subject to copyright fees.
"This Court's intervention is urgently needed," the broadcasters wrote in the petition. "This Court has had little tolerance for business models built on the for-profit exploitation of the copyrighted works of others. ... The issue here is simply too consequential to allow the Second Circuit to operate with a different set of copyright rules from those envisioned by Congress and operative in the rest of the nation. This Court's review is needed now."
In the petition, the broadcasters lay out their case for why Aereo threatens the very model of the broadcast television business, calling it "a direct assault." Cable companies, the petitioners argue, are questioning why they should continue to pay retransmission fees when Aereo does not, and "diverts viewers from distribution channels measured by Nielsen," threatening advertising revenue.
Aereo also "undermines broadcasters' ability to obtain revenues from allowing their programming to be distributed over the Internet by licensed video-on-demand providers, such as Hulu, Netflix and Amazon. In short, Aereo threatens a profound and devastating effect on broadcast television."
When reached for comment, Aereo spokesperson Virginia Lam said, “We will respond, as appropriate, in due course.”
Cablevision, whose 2008 court victory is taking center stage in the ongoing dispute, didn't wait to lash out at broadcasters, calling the filing "a brazen attempt ... to go after the legal underpinning of all cloud-based services, everything from digital lockers to Cablevision's own RS-DVR service," the company said in a statement. "Given that there are much narrower, and more persuasive, legal grounds for invalidating Aereo that do not threaten such underpinnings, the broadcasters' approach can only be seen as a willful attempt to stifle innovation. If Aereo ends up prevailing, it will serve the broadcasters right."