Already high, the stakes in the Aereo case could get even higher

The legal battle between the broadcasters and Aereo, along with its companion dispute involving FilmOn X (formerly AereoKiller), has been going hammer-and-tong around the country since Aereo launched last year, with lawsuits now pending in New York, California, Washington, DC, Massachusetts, Utah and other jurisdictions. So it’s no great surprise that the broadcasters would try to push the issue up the legal food chain to the Supreme Court as they did last week in asking for review of the Second Circuit’s denial of their request for an injunction against Aereo.

There’s no certainty the court will take the case, of course. Traditionally, the Supremes like to wait until all the facts and legal issues of a case have been thoroughly chewed over by lower courts before weighing in to avoid having to take it up again to fully resolve it. But the broadcasters’ petition for review does a pretty good job of portraying the various courts as split on the key legal issues, which might just tempt the Supreme Court to intercede.

Should that happen, the stakes in the case could get dramatically higher, and not just for Aereo. The broadcasters’ brief, which takes a strong lead from Judge Rosemary Collyer’s opinion in the Washington, DC, case granting the broadcaster’s request for an injunction against FilmOn, doesn’t just critique Aereo and FilmOn, it goes directly after the legal principle articulated by the Second Circuit in its 2008 ruling in favor of Cablevision’s remote DVR service, which provided the legal template on which Aereo designed its system.

Just as copyright owners never quite reconciled themselves with the Supreme Court’s 1984 ruling in the Betamax case, the networks have been looking for a way to put the Cablevision genie back in the bottle since 2008. And in Aereo, they think they’ve found a way.

Making the case as much about Cablevision as about Aereo, however, raises the stakes for everyone. Lots of cable operators are eyeing, or have already deployed, cloud-based DVR systems in the years since Cablevision won its case. The principle of non-infringing remote storage and retrieval of content — so long as it’s done at the sole direction of the user — has also become pretty ingrained in connected consumer space. Voiding that principle now would take down a lot more than Aereo.

The broader implications were certainly not lost on Cablevision, either. The company issued a statement last week sharply critical of the broadcaster’s petition:

We are dismayed by the broadcasters’ brazen attempt, in a case about Aereo, to go after the legal underpinning of all cloud-based services, everything from digital lockers to Cablevision’s own RS-DVR service. Given that there are much narrower — and more persuasive — legal grounds for invalidating Aereo that do not threaten such underpinnings, the broadcasters’ approach can only be seen as a willful attempt to stifle innovation. If Aereo ends up prevailing, it will serve the broadcasters right.

Ouch. If the Supreme Court agrees to hear the case expect that amici to try to pile in on all sides.

 

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Paul Sweeting

Principal Concurrent Media Strategies

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