Is This Aereo's Back-Up Plan?
If something looks like a duck and quacks like a duck, then you have to treat it like a duck.
That's the essential argument Aereo is making in the wake of the US Supreme Court's ruling in favor of broadcasters two weeks ago. In a 6-3 decision, the Supreme Court held that Aereo "is for all practical purposes a traditional cable system." Given that pronouncement, Aereo now says it's entitled to a copyright statutory license just like its cable company fellows. A license would enable Aereo to negotiate retransmission fees with broadcasters in the same way that other cable operators do today. (See Supreme Court Halts Aereo's Flight.)
Not surprisingly, broadcasters aren't buying Aereo's argument, which was made in a letter filed with the lower court handling the broadcast companies' injunction request. They point out that in the Supreme Court case, Aereo was adamant about not being classified as a cable operator. However, the streaming company now says the situation has changed.
"Under the Second Circuit's precedents, Aereo was a provider of technology and equipment with respect to the near-live transmission at issue in the preliminary injunction appeal. After the Supreme Court's decision, Aereo is a cable system with respect to those transmissions."
Aereo's lawyers also have another argument in their arsenal. In the filing with the lower court, the lawyers say that even if Aereo isn't granted a statutory license, any injunction against the company should still be limited. They claim that because the Supreme Court only objected to Aereo's system of "near simultaneous" streaming of broadcast TV programs, the company should still be allowed to deliver time-shifted content.
Whether or not Aereo ultimately succeeds on any legal grounds, the company's business is still in jeopardy. As a cable company, Aereo would be subject to the same rising retransmission fees that have threatened the profits of so many other operators. In addition, any negotiations with broadcasters would likely suffer from the bad blood generated through years of legal battles.
Even prominent Aereo investor Barry Diller appeared to throw in the towel after the Supreme Court decision saying, "We did try, but it's over now." (See Aereo Presses Pause for Good?.)
Aereo CEO Chet Kanojia has remained optimistic, however. He told consumers in a public letter recently that "our journey is far from done."
As the latest court filing shows, the company isn't ready to close its doors yet.
— Mari Silbey, special to Light Reading