Controversial online television service Aereo is trying to make a comeback, after the Supreme Court ruled last month it was violating copyright laws by transmitting local channels over the Internet.
Now Aereo says in a new court filing that it wants to be treated just like cable TV carriers, which are entitled to carry local broadcast channels if they pay a government-set compulsory license fee. That’s the opposite of what the Barry Diller-backed startup had argued for the past two years, when it claimed to be providing customers with individual service via thousands of tiny TV antennas.
Under court precedents prior to the Supreme Court decision, “Aereo was a provider of technology and equipment with respect to the near-live transmissions at issue," the company said in a letter to U.S. District Judge Alison Nathan on Wednesday. "After the Supreme Court’s decision, Aereo is a cable system with respect to those transmissions."
Before losing in the Supreme Court, Aereo provided customers in almost a dozen cities, including New York and Dallas, with a menu of their local broadcast channels via the internet for $8 to $12 a month. The company shut down the service a few days after the June 25 Supreme Court case, but urged customers to press Congress to legalize the offering.
Broadcasters, who sued to bring Aereo down, not surprisingly opposed the company’s new tack.
“It is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a 'cable system' under Section 111 (of the Copyright Act of 1976) given its prior statements to this Court and the Supreme Court,” the group, which includes Walt Disney’s (DIS) ABC, CBS (CBS), Twenty First Century Fox (FOXA) and Comcast’s (CMCSA) NBC, wrote in response.
Lawyers specializing in broadcast and copyright law said it would be a long shot for Aereo to pull off the 180 degree turn in legal strategy, even though the Supreme Court found that the company did resemble cable TV systems.
An "overwhelming likeness"
Aereo’s technical setup was somewhat different from cable, Justice Stephen Breyer wrote for the high court. “But given Aereo's overwhelming likeness to the cable companies … this sole technological difference between Aereo and traditional cable companies does not make a critical difference here,” he concluded.
“Aereo is making an interesting argument and the Supreme Court invited it,” says Jason Bloom, an intellectual-property specialist and partner at the law firm Haynes & Boone in Dallas. “But I doubt the court will go for it. Internet transmission was definitely not contemplated in 1976 when the compulsory license was added to the law.”