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Aereo Pivots, Arguing It's an Online Cable and DVR Company

By William Peacock, Esq. on July 29, 2014 | Last updated on March 21, 2019

Aereo was an online service that rebroadcast over-the-air network programming over the Internet. That didn't work out so well for them, especially once they reached the U.S. Supreme Court.

But buried in that SCOTUS opinion was a nugget of hope: a DVR service. The Court explicitly noted that it was not ruling on whether Aereo's DVR service, which stores user recordings of programs in the cloud, was legal. Of course, a DVR isn't much good if there is no video to be recorded, so the company is also rebranding itself as an online cable company, hoping that the rebranding entitles them to a compulsory license on programming.

It's not a crazy pivot: online television via antennas to online cable provider. Heck, it's not like they switched from video advertising to scrubbing socks. But will it work? If so, the company will have to win in two separate legal battles: one in the Tenth Circuit and one in a federal district court in New York.

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Aereo Resurrected?

Aereo wasn't killed by Aereokiller (later renamed FilmOn), at least not directly. It was killed by the legal system. Now, it's asking the Tenth Circuit to give it a chance at resurrection, by lifting an injunction blocking the service from operating.

According to MediaPost, Aereo filed papers this week in the Tenth Circuit requesting the remedy, while noting that the Supreme Court expressly refused to rule on whether the company's DVR service was legal. It should be an interesting and important battle, not just for Aereo, but for other pay television providers like DirecTV and especially Dish Network, which have similar cloud-based DVR products.

The argument goes something like this: A DVR is legal for recording television programs, and this simply puts those recordings in the cloud instead of on a local disk -- same thing, newer technology.

SCOTUS Made Us a Cable Company

A simplified version of the Supreme Court's ruling against Aereo is this: It operated like early cable companies did, and therefore, it was publicly performing television shows without a license.

Aereo's response? SCOTUS said we're a cable company, and therefore, we're entitled to a compulsory license under Section 111 of the Copyright Act, reports MediaPost.

The television networks, which brought the original case against Aereo, were not amused. "Aereo never before pled (much less litigated) Section 111 as an affirmative defense," the broadcasters protested to U.S. District Court Judge Alison Nathan in New York. "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'."

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