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Television Broadcasters Not Happy with Aereo; Petition for Cert

By Gabriella Khorasanee, JD on October 14, 2013 | Last updated on March 21, 2019

When you stream television content on your mobile devices, do you consider those private, or public, performances insofar as copyright law is concerned? That's the basic question television broadcasters are petitioning the Supreme Court to decide.

WNET, Inc., et al, v. Aereo, Inc. -- Background

Aereo, is a company that charges subscribers $12/month to watch television programming (live or recorded) on their mobile devices, and interestingly, is backed by Barry Diller's IAC/Interactive Corp., reports Reuters. Aereo service works by re-transmitting content to subscribers over the Internet.

A group of television broadcasters including ABC, NBC, Fox and CBS, filed a complaint in federal court claiming that Aereo's business violates their performance rights under copyright law. They sought a preliminary injunction, which the district court denied.

WNET, Inc., et al, v. Aereo, Inc. -- Second Circuit Opinion

On appeal, the Second Circuit affirmed the decision of the district court, relying on its precedent in Cartoon Network LP, LLLP v. CSC Holdings, Inc., which the court found was not materially distinguishable. The court characterized the performances as private, not public, because of Aereo's "system uses thousands of individual, dime-sized antennas that enable subscribers to make their own purportedly 'unique' copies of the programming for retransmission back to themselves." A few months after issuing the order, the Second Circuit denied a motion for rehearing en banc.

WNET, Inc., et al, v. Aereo, Inc. -- Cert Petition

On Friday, the television broadcasters filed a petition for writ of certiorari to the Supreme Court asking it to determine "[w]hether a company 'publicly performs' a copy-righted television program when it retransmits a broadcast of that program to thousands of paid sub-scribers over the Internet."

In its 209-page petition, the broadcasters argue that the Second Circuit's opinion "'threatens to upend' the billions of dollars that the TV industry has invested in programming 'by blessing a business model that retransmits 'live TV' to paying customers without obtaining any authorization or paying a penny to the copyright owners,'" reports The Hollywood Reporter.

Interestingly, Cartoon Network, the case the Second Circuit relied on in its decision was denied cert in 2009. Perhaps with the increasing popularity of streaming television onto mobile devices, the Supreme Court will be ready to hear this case.

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