In a joint letter to the Court filed yesterday, online TV provider Aereo and the major broadcast networks laid out their positions on the next steps in their litigation following the Supreme Court’s recent ruling in favor of the broadcasters. Despite the Supreme Court’s ruling, the battle appears set to rage on before Judge Nathan.
The broadcasters state that they will be providing the court with a proposed order prohibiting Aereo from violating their “public performance rights,” consistent with the Supreme Court’s decision. Beyond that, however, they say “determining the most sensible and efficient way to proceed, including any final resolution and the recovery of damages and/or fees, has been rendered nearly impossible by Aereo’s refusal to clearly specify whether, when and in what fashion it intends to continue operating.” In particular, they take issue with Aereo’s newest argument: that as a result of the Supreme Court’s decision, Aereo is in fact a cable company entitled to a compulsory license under the Copyright Act. The networks write:
On July 1, however, its counsel suggested that Aereo has rethought its entire legal strategy and will raise before this Court a brand new defense based on Section 111 of the Copyright Act. Aereo never before pled (much less litigated) Section 111 as an affirmative defense. 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.
For its part, Aereo contends that the Supreme Court’s ruling has simply changed the whole ballgame.
Aereo has been careful to follow the law, and the Supreme Court has announced a new and different rule governing Aereo’s operations last week. 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. . . . The Supreme Court’s holding that Aereo is a cable system under the Copyright Act is significant because, as a cable system, Aereo is now entitled to the benefits of the copyright statutory license pursuant to the Copyright Act, 17 U.S.C. § 111(c). Aereo is proceeding to file the necessary statements of account and royalty fees. By holding that Aereo is a cable system, the Supreme Court has overruled WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 279 (2d Cir. 2012) to the extent it might apply to Aereo—and, that case, in any rate, concerned a service that made distant, rather than local, transmissions of television programming to subscribers.
Our previous posts on the Aereo case can be found here.