Aereo Defenders Say Broadcast Ban ‘Would Strip Away Commercial Freedom’

Comparing online streaming of network programs to home stereos and VCRs, supporters argue that the Supreme Court should deny broadcasters’ demands for copyright expansion

Last Updated: August 4, 2014 @ 10:34 AM

Consumer groups, the consumer electronics industry, satellite TV providers, law professors and smaller cable system operators are coming to the defense of Aereo in its fight with TV broadcasters over whether the airing of local TV stations over the web is legal.

In eight separate Friend of the Court briefs, filed Wednesday in advance of Supreme Court oral arguments April 22, the groups argue that Aereo’s model is legal, and overturning it would risk eliminating choices consumers have to record and watch shows later.  They also argue that any decision to limit Aereo could have far-reaching effects on cloud computing.

“The Aereo rental model is a practical alternative to purchasing and operating an individual antenna and home DVR,” said one brief jointly filed by the Consumer Federation of America and Consumers Union.

See video: Barry Diller: Aereo ‘Finished’ If It Loses Supreme Court Case (Video)

The two consumer groups said Aereo represents a powerful new option to consumers starved for flexible use of broadcast TV and a way to ensure competition. They warned that a high court finding that Aereo was engaged in retransmission “would restrict consumer sovereignty and permit incumbent providers to dictate terms on which significant technological innovations will be made available to consumers.”

The Electronic Frontier Foundation, Public Knowledge, Engine Advocacy and the Consumer Electronics Association in a separate Friend of the Court brief said TV networks’ position — that Aereo is retransmitting local TV stations — conflicts with a history of court cases and congressional views. Engine Advocacy supports the growth of technology entrepreneurship.

“The question at issue in this case is not whether Aereo will harm the television industry,” says the brief. “Nor is it whether there is commercial value in enabling live TV transmissions. The issue is: Does Aereo’s technology make public performances according to the words of the Copyright Act.”

Also read: Aereo CEO Slams Broadcasters for Being Wrong About Copyright Violations

The groups suggested Aereo’s transmission from individual antennas to a single subscriber are non-public transmissions and warned any decision labeling them public performances would have major ramifications.

“The approach suggested [by broadcasters] would strip away the commercial freedom that led to the home stereo, the videocassette recorder, all manner of personal audio and video technologies and many internet-based services.”

The four groups also suggested the court should “refrain” from becoming a technology regulator.

“Instead of attempting to rebalance the various interests raised here based on a slim factual record and opinions on what constitutes ‘real’ or ‘sham’ innovation, this court should decline the copyright expansion broadcasters seek and allow Congress to address the matter,” the brief said.

Also read: Aereo ‘Extremely Disappointed’ as Court Blocks Expansion in 6 States

The American Cable Association in its Friend of the Court brief argued that broadcasters are seeking sweeping rights that go too far.

It said any exclusive right broadcasters have to air a work publicly doesn’t give them the right to limit who can be in the audience or veto technologies used to view the performances.

“Even though free, over the air broadcasts are a viable alternative to cable, ACA members welcome new technologies that allow their customers to have better reception of free over-the-air local television, thereby creating a modest safety valve against unfair and oppressive retransmission rates.”

The group also said that freedom to receive a performance “must not be sacrificed to protect existing market position.”

“Just as the Copyright Act grants no ‘exclusive right to watch’ a public performance, there is also no ‘exclusive right to receive’ a televised broadcast,” the group said.

Dish Network and Echostar Technologies argued in its brief that copyright laws draw a bright line between getting initial access to a copyrighted work and re-accessing the same work.

Congress “never intended to authorize copyright holders to charge the public repeatedly to access their lawful copy of a work at a different time or place,” the companies argued. “Affirming that bright line is essential.”


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