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Internet TV streaming service Aereo, which suspended its operations June 28 following the Supreme Court copyright decision in favour of US broadcasters, has filed a letter with the lower court suggesting that after the Supreme Court’s decision, Aereo should be recognised as a cable system with respect to its method of transmission and licensed as such, paying appropriate fees.
Similar antenna-based service FilmOn Networks announced early July that its combination of teleporter technology and remote antennas will operate under Section 111 of the Copyright Act 1976.
In a letter to Aereo users and supporters, CEO Chet Kanojia said it had been the operator’s mission to build a lawful technology that would provide consumers with more choice and alternatives in how they watch television. “We believed that providing an innovative cloud-based individual antenna would provide consumers with a convenient way to use an antenna to watch the live, free-to-air signals broadcast over public spectrum that belongs to them,” he wrote.
“Unfortunately, on June 25, the United States Supreme Court reversed a lower court decision in favor of Aereo, dealing a massive setback to consumers. With this most recent decision and in the spirit of remaining in compliance, we chose to pause our operations last week as we consulted with the lower court to map out our next steps,” he continued, advising that a letter had been filed with the lower court.
“This has been a challenging journey for our team, but your support has continued to lift and propel us forward. We remain committed to building great technologies that create real, meaningful alternatives for consumers,” he declared, thanking users and supporters for their patience and continued support. “We are truly grateful,” he ended.
In the letter, Aereo’s lawyers noted that under the Second Circuit’s precedents, Aereo was a provider of technology and equipment with respect to the near-live transmissions at issue in the preliminary injunction appeal. “After the Supreme Court’s decision, Aereo is a cable system with respect to those transmissions,” they contend.
Accordingly, they suggest that: “If Aereo is a ‘cable system’ as that term is defined in the Copyright Act, it is eligible for a statutory license, and its transmissions may not be enjoined (preliminarily or otherwise).”
Aereo says it plans to file the necessary statements of account and royalty fees, and asserts that the Supreme Court’s decision has overruled the 2nd Circuit decision in Ivi, a similar over-the-air digital TV service which similarly presented itself as a legitimate business by paying compulsory licence fees.
According to Aereo’s lawyers, “If the Court finds Section 111 inapplicable and determines that it should enter a preliminary injunction, that injunction must be limited to the conduct the Supreme Court carved out from Cablevision’s general rule: the simultaneous or near-simultaneous streaming of over-the-air television programs. The Supreme Court opinion did nothing to prohibit—and indeed reaffirms the vitality of—non-simultaneous playback from copies created by consumers.”
The broadcasters at the centre of the action crticised Aereo’s refusal “to clearly specify whether, when and in what fashion it intends to continue operating,” noting that it had never before pleaded, or much less litigated Section 111 as an affirmative defence. “Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a ‘cable system’ under Section 111 given its prior statements to this Court and the Supreme Court,” they declared.
Aereo said it would not be making any further comment at this time.