Broadcasters: Aereo brief deeply flawed

A group of broadcasters has responded to Internet TV streaming service Aereo’s December 15 brief which said that it would not now oppose an action brought by the broadcasters which petitioned the US Supreme Court to overturn a denied injunction which sought to have the Barry Diller-backed service declared illegal.

“The need for this Court’s intervention is great, and the time for this Court’s intervention is now,” declares the brief. “Industry participants cannot and will not wait much longer before responding to the distortions that the law of the nation’s largest market is creating.”

According to the broadcasters, “Aereo’s response brief gets a great deal wrong, but it gets one important thing right: This exceptionally important case warrants this Court’s immediate review.”

It suggests that there will be time enough to respond fully to Aereo’s deeply flawed merits contentions if the Court grants plenary review, but says that a few of Aereo’s “more dubious” propositions should be corrected immediately.

The brief suggests that Aereo devotes “substantial effort to attempting to recast itself as something it plainly is not – a mere supplier of equipment that individuals may use to enhance their ‘private reception of broadcast television.’ Make no mistake about it. Aereo is not a hardware supplier. It offers a subscription service.”

Accordingly, the brief suggests that the Court “should reject Aereo’s effort to rewrite the question presented in a manner that portrays Aereo as an equipment supplier. Aereo cannot deny that it has thousands of paid subscribers, all of whom can use Aereo to ‘watch live TV’ – indeed, all of whom can watch the Super Bowl simultaneously.”

The broadcasters also suggest that in its brief, Aereo also spends considerable time talking about DVRs and cloud computing, rather than its own business model, saying that such an impulse to change the subject is understandable. “ But ultimately it is Aereo’s business model – and not distinct technologies that allow individuals to access content they have already paid for – that is at issue here,” they argue, contending that contrary to Aereo’s intimations, Aereo and those technologies do not stand or fall together. “Aereo’s business model depends distinctly on offering access to the copyrighted content of others without authorisation, undercutting competing services that pay licensing fees to offer access to that content.”

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