Aereo files to stop "do over" suits from broadcasters

Steven Loeb · May 6, 2013 · Short URL:

CBS has already declared its intention to sue in advance of Boston expansion later this month

Despite encountering both lawsuits and threats from the broadcast networks, free Web TV service Aereo has no plans to slow down, having already announced that it is going to expanding to Boston later this month. But the company is also acting a little bit wiser this time around about the problems it will most likely encounter as a result of that move.

Aereo filed a declaratory judgment action on Monday to stop the broadcasters, and CBS in particular, from suing it in Boston, and other areas where the company expands, citing a recently uheld decision by  the U.S. Appeals Court for the Second Circuit as grounds.

"Such threatened follow-on suits would be an attempt to avoid or evade the District Court's ruling in the Consolidated 2012 Actions and the Second Circuit's affirmance of the denial of the preliminary injunction motion, by seeking 'do-overs' in other courts. It is not proper for parties to relitigate claims that are pending, let alone already decided. Among other reasons, it would be highly inefficient and a waste of judicial resources. The threatened follow-on lawsuits would involve the same technology, involve the same witnesses, and implicate the same legal and factual issues that are already the subject of the Consolidated 2012 Actions," it says in the filing. 

The case that Aereo is referring to began in March of 2012, many New York-based broadcast stations participated in lawsuits filed against Aereo, stating that the business violated copyright law by using their broadcasts in an unauthorized Internet delivery service that is receiving, converting and retransmitting broadcast signals to its subscribers for a fee.

In July, A U.S. district judge denied the broadcasters an injunction finding that Aereo’s method of allowing its user to control viewing and recording from their PCs, or mobile devices, had already been covered by an earlier decision in 2008, Cartoon Network v. CSC Holdings, aka “Cablevision." That decision was upheld by the U.S. Appeals Court for the Second Circuit in March.

The next step for broadcasters is to take the lawsuit to the Supreme Court of the United States, and that is no doubt what they will try to do.

This move by Aereo on Monday is meant to use the company's victory in the Second Circuit to prevent the broadcasters from essentially hounding Aereo across the country, using lawsuits to slow down the company's expansion. 

CBS had already made its intentions to continue suing Aereo explicitly clear in an exchange between BTIG analyst Rich Greenfield and CBS Corporation communications executive Dana McClintock after Aereo made the announcement about its plans in Boston:

Aereo has already made public its plans to bring its service to Miami, Austin, Atlanta, Chicago, Dallas, Houson, Washington D.C., Baltimore, Detroit, Denver, Minneapolis, Philadelphia, Pittsburgh, Tampa, Cleveland, Kansas City, Raleigh-Durham, Salt Lake City, Birmingham, Providence, and Madison throughout 2013. 

There is no doubt that CBS would take the same action, suing the company for copyright infringement, in all of these areas as well.

Here is how  Lam explained Aereo's latest move to VatorNews:

“In response to the CBS companies' repeated threats to sue Aereo in every market that it enters, Aereo today filed a declaratory judgment action in New York naming CBS, its Boston affiliates and its wholly owned and operated companies located in Aereo's initial expansion markets," she said.

"In 2012, CBS and other broadcasters chose to file copyright lawsuits against Aereo in the federal courts in New York. Last year, the trial court denied CBS’s and the other broadcasters' request for a preliminary injunction against Aereo; and, last month, the appeals court affirmed that decision. The fact that CBS did not prevail in their efforts to enjoin Aereo in their existing federal lawsuit does not entitle them to a do-over in another jurisdiction.  We are hopeful that any such efforts to commence duplicative lawsuits to try to seek a different outcome will be rejected by the courts."

New York City-based Aereo is a Web platform that allows users to watch live TV on their mobile devices or computers. It grabs over-the-air TV signals and routes them to users over the Internet, so they can watch broadcast TV whenever and wherever they want, on devices including PCs, iPads and Roku boxes. 

No cable subscription is required to use Aereo and membership plans begin at $1 per day, $8 per month or $80 per year. Aereo is currently supported on iPad, iPhone, Chrome, Internet Explorer 9, Firefox, Safari, Opera, AppleTV and Roku.

The service has raised the ire of the broadcast channels, who rely on retransmission fees, which typically  require cable operators, and other distributors, to obtain permission from broadcasters before carrying their programming, for money.  These operators will often be asked to pay the broadcaster in order to get permission to carry the station, but Aereo retransmits the broadcast without permission and without paying.

The broadcasters have said that they cannot continue to operate without these fees, and have tried using the legal system to stop Aereo from broadcasting for free.

You can read the filing below:

Aereo Complaint for Declaratory Judgment - FINAL FILED

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