A federal judge today found the Alki David-run free-TV-over-the-Internet company in contempt of court for violating a nearly nationwide ban. Hoping to avoid Judge Rosemary Collyer’s wrath, FilmOn X claimed in late October that it was system error that led to copyrighted programming from Fox, NBC and ABC being played on the service in the Boston area in September. Despite her order on September 5 for FilmOn X to go dark everywhere but in New York, Connecticut and Vermont, the DC-based judge did not impose a fine on the company for its one-day indiscretion. Collyer did say in a hearing Monday that she would fine FilmOn X $20,000 a day if there was a repeat of the mistake — intentionally or not. READ MORE »
Don’t include Charlie Ergen among the small but growing group of industry watchers who believe cable and satellite companies could soon face competition from a company that offers a similar bundle of channels via the web. “It’s going to happen at some point in time,” the Dish Network chairman told analysts today. “But most programmers have been hesitant to embrace that kind of dramatic change. In the short term, it’s unclear that that’s going to happen.” Intel is one of the companies that wanted to become an online power — but now hopes to sell its venture, called On Cue. Verizon and Liberty Media are said to be interested. Dish isn’t. “We’re not in any discussions with Intel about their over-the-top product,” Ergen says. Still, he evangelized about the value of keeping one’s options open. Although “we’re not trying to drive over-the-top,” he says that “if things are going to change, then we want to be involved with it.”
The No. 1 satellite company warns broadcasters that their rush to raise retransmission consent fees could backfire. DirecTV‘s outlays to broadcast stations are up 50% this year, and that’s “not sustainable,” CEO Mike White told analysts today …
Long Island City, New York (October 29, 2013) – Aereo, Inc., today announced plans to launch its groundbreaking online television technology in the Denver metropolitan region on November 4. The Denver metro area includes 67 counties across Colorado, Nebraska and Wyoming and more than 3.4 million consumers. Aereo’s announcement follows its expansion earlier this year to the Boston, Atlanta, Miami, Salt Lake City, Houston, Dallas and Detroit metropolitan areas. Aereo plans to announce additional launch dates for its expansion cities throughout the remainder of the year.
Seems they’re considering just that — with Time Warner Cable weighing the possibility of buying the Barry Diller-backed streaming video company — Bloomberg reports today, citing unnamed sources. Aereo uses thousands of tiny antennas to pick up local TV signals that it streams to its subscribers without paying broadcasters a dime. If the cable and satellite companies followed through, it could create a nightmare for broadcasters. TV station owners likely will collect $3B this year from cable and satellite company retransmission consent payments, and the amount is expected to double during the next five years. By 2015 the payments could account for 24% of CBS’ cash flow, 11% of Fox’s, and 3% of Disney’s, Guggenheim Partners’ Michael Morris predicted this week. Much of that revenue could evaporate if cable and satellite companies replicated Aereo’s model. No wonder the major TV station owners have asked several courts, including the U.S. Supreme Court, to rule that the service infringes on their copyrights. (Aereo says it merely leases consumers the kind of equipment they could use to watch and stream TV at home for free.)
As broadcasters and Aereo wait to see if the Supreme Court will agree to the former’s recent petition to hear the case against the latter, the Barry Diller-backed streaming service has been sued …
On day of the deadline set by a federal judge last week to explain why she shouldn’t hold FilmOn X in contempt of court for violating a nearly nationwide ban, the Alki David-run free-TV-over-the-Internet company basically said “Oops.” Calling the looming contempt “a drastic remedy,” FilmOn X on Monday said it was simply a mistake that it had copyrighted programming from Fox Broadcasting, ABC and NBC playing in the Boston area after DC-based Judge Rosemary Collyer’s order on September 5 to pull the plug everywhere but in New York, Connecticut and Vermont. “At worst, FilmOn X’s testing of its software inadvertently allowed a limit number of users in the First Circuit to access copyrighted programming for a brief period of time after the Hearst decision. Upon discovering that this error had occurred, FilmOn X immediately and voluntarily took corrective action before Plaintiffs brought this issue to this Court’s attention,” said the 15-page response filing from the company (read it here).
This should interest Motor City lawyers, as well as viewers there who want to stream programming from local TV stations without a cable/satellite subscription or an antenna. Seems that every time Aereo enters a market, it faces a …
Now it really doesn’t look like the streaming service will get to grill the CBS Corp boss. Less than a week after broadcasters petitioned the Supreme Court over Aereo, a NY-based federal judge today denied the Barry Diller-backed company’s second attempt at winning permission to depose Les Moonves. Aereo wanted restrictions that Magistrate Judge Henry Pitman put on the scope of its discovery in the 18-month-old copyright infringement case lifted, including access to a wide range of documents. It also wants to park the rarely reticent Moonves in front of its lawyers because he “has made public statements regarding the claims in this case, including comments that contradict sworn CBS testimony,” according to its filing earlier this year. Reaffirming Pitman’s ruling of June 4, District Judge Alison Nathan today said no way. “Nothing in the record suggests that the rulings were clearly erroneous or contrary to law, or that the substantial deference due to the resolution of discovery disputes by a magistrate judge should not be accorded in the instant matter,” she said in her order (read it here).
The IAC chief provided the only hint of drama today at the Library of American Broadcasting’s “Giants of Broadcasting” awards luncheon in NYC. Everyone wondered how Barry Diller — one of today’s 11 honorees — would deal with the fact that he supports Aereo. Most in the audience consider the streaming service to be illegal, and a threat. The IAC chief didn’t flinch: “It’s especially nice that I get this honor when many people in this room are suing me,” he said. He added, in jest, that “after you’re accused of stealing a few times, you get a little sensitive.” The former ABC exec, and creator of Fox Broadcasting, gently chided broadcasters as they demand rising fees from cable and satellite companies that retransmit their signals — and threaten to pull their best shows from the airwaves if courts support Aereo, which streams their programming without their permission. “I always believed broadcasters should have a second revenue stream” in addition to advertising, Diller said. But they need to be sensitive to the fact that “there are people who can’t afford cable or satellite.” He added that he’s glad he became a broadcaster years ago when it was clear that the industry should support the public interest — “values that were separate from competition, separate from business.” Still, he says, local broadcasting will endure and TV stations are “one of the great buys.”
FilmOn X didn’t gain any traction from Aereo‘s legal win in Massachusetts last week. In fact, today’s decision by a DC-based federal judge to deny the Alki David-run free-TV-over-the-Internet company a modification to the almost nationwide preliminary injunction ordered on September 5 might have landed FilmOn X in more legal hot water. “It appears that FilmOn X may be acting in defiance of this Court’s Preliminary Injunction, possibly by retransmitting Plaintiff’s copyrighted broadcast programming in the Boston area,” the 3-page ruling (read it here) from Judge Rosemary Collyer said, referring to her ruling last month in favor of Fox Broadcasting, ABC and NBC. The judge is giving FilmOn X 6 days to explain why she shouldn’t hold them in contempt of court.
The latest legal hand-slap comes after FilmOn X on October 10 petitioned the court to add Massachusetts, Rhode Island, New Hampshire and Maine to the states not covered by the injunction. It cited the October 10 denial of an injunction sought by a Hearst-owned ABC affiliate against Aereo in Massachusetts as legal justification, but today the judge distinctly disagreed and told FilmOn X to check its facts and courts.
UPDATED 5:29 PM: Cablevision has issued a statement on the filing: “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.”
PREVIOUSLY: Disney, CBS, NBCUniversal, WNET, Fox, and Univision just made the filing. It’s a Petition for Writ of Certiorari asking the justices to review a ruling by the U.S. Courts of Appeals in New York. That court rejected broadcasters’ plea to shut Aereo during a trial to determine whether the service infringes on their copyrights when it streams their over-the-air programming to subscribers without paying a license fee. “Today’s filing underscores our resolve to see justice done,” a Fox spokesperson says. “Make no mistake, Aereo is stealing our broadcast signal.” Aereo says that it will “respond, as appropriate, in due course.” But the company has argued that consumers have the right to watch broadcasters’ free transmissions, and it simply leases the antennas and equipment people need to take advantage of that right. There’s no guarantee that the high court will consider the case to be worth the justices time, at least not yet. “With no conflicting Circuit Court decisions and this not being a state vs state legal battle, the only reason for the Supreme Court to take this case is if it deems the issue of ‘national importance’,” says BTIG analyst Rich Greenfield — who has been enthusiastic about Aereo. As a result he says it would be “quite a stretch” for the petition to fly, “let alone for broadcasters to win.” Yesterday the Circuit Court in Boston rejected an effort by broadcasters to block Aereo, similar to the one that was rejected in New York. Word of a possible appeal to the Supreme Court began to spread on Wednesday.
Listen to (and share) episode 54 of our audio podcast Deadline Big Media With David Lieberman. Deadline’s executive business editor talks with host David Bloom about John Malone’s call for more cable consolidation and cooperation in the face of an existential threat from Netflix and its ilk; broadcaster plans to go to the Supreme Court as they pursue injunctions against Aereo; a whole raft of news on Twitter as Comcast partners with it and Nielsen tracks it; and more stock machinations by 21st Century Fox as it tries to accommodate U.S. broadcast-ownership rules while fending off critics.
With just days to go before broadcasters are likely to take Aereo to the Supreme Court, a federal judge has denied Hearst-owned Boston-station WCVB-TV a preliminary injunction motion against the Barry Diller-backed streaming service. “The Court finds that Hearst has made a minimal showing of irreparable harm that is an insufficient basis for entering a preliminary injunction in its favor,” said District Judge Nathaniel Gorton. “Hearst has not demonstrated a sufficient likelihood of success on the merits nor the requisite irreparable harm and therefore it is not entitled to that ‘extraordinary and drastic remedy’,” he adds in the October 8 order (read it here). As one part of its argument, Hearst had hoped that the Massachusetts-based court would see the merits of the almost nationwide injunction that a federal D.C. court had hit fellow streaming service FilmOnX with in September. With that now not happening, the long and the short of it means that this case will go forward with the multi-city Aereo still available in the Boston area showing the ABC affiliate’s programming. “Today’s decision, coupled with the decisions in favor of Aereo in the Southern District of New York and the Second Circuit Court of Appeals shows that when you comply not only with the letter, but the spirit of the law, justice will prevail,” said Aereo CEO Chet Kanojia in a statement today. The decision wasn’t a total win for Aereo as the service was denied its motion to transfer the case to the Southern district of New York, where it has had legal success in the past.
LONG ISLAND CITY, NY–(Oct 10, 2013) – Aereo, Inc., today announced that it will release its first Android app, available for download in the Google Play store, on October 22, 2013. The app, which will be released in a public beta, will be available to Aereo members residing in markets where Aereo’s technology has launched. The Aereo app will be compatible with phones, phablets and tablets running Android operating system 4.2 or higher. Aereo members will also now be able to connect a Roku box to their Aereo account using their Android device.
“We know consumers have been waiting a long time for an Aereo Android app and today, we’re happy to announce its release later this month,” said Aereo CEO and Founder Chet Kanojia.
Broadcasters have until October 15 to file a writ of certiorari, which I’m told they plan to do. They’ll ask the Supreme Court to review lower court decisions that upheld Aereo’s right to continue operating while it defends itself against charges that its streaming service violates TV station copyrights. ABC, CBS Fox, NBC and others say Aereo breaks the law by transmitting their shows to its Internet subscribers without paying a license fee. Aereo counters that consumers have the right to watch broadcasters’ free over-the-air signals, and it simply leases the antennas and equipment people need to take advantage of that right. Aereo won a big victory last year when U.S. District Court Judge Alison Nathan in New York rejected broadcasters’ request for a preliminary injunction in the copyright infringement case. Broadcasters challenged the decision, but 2nd Circuit Court of Appeals Judge Christopher Droney, writing for the majority, sided with Aereo saying that its transmissions “are not ‘public performances’ of the Plaintiffs’ copyrighted works.” Fox said in July that it might take the case
First it was New York, then later Boston and today a new battlefield opened in the legal war between the Barry Diller-backed streaming service and broadcasters. Less than two months after its debut in Utah, Fox Broadcasting along with local stations KSTU-TV, KUTV-TV and KMYU-TV filed a copyright infringement suit (read it here) against Aereo in federal court to get the service shut down. The new jury-demanding suit seeks a preliminary injunction against Aereo and it wants unspecified statutory damages, as well as legal fees and whatever else the court will give the plaintiffs. Launched in NYC last year and already in several other cities across the nation, the much-sued Aereo premiered in Utah on August 19. “Aereo has not been authorized by any of the Plaintiffs to retransmit their copyrighted programming. Even though Aereo is in the business of selling access to the programming broadcast on KSTU, KUTV, KMYU, and other local stations, it pays nothing to the copyright owners. Legitimate retransmission services like cable and satellite companies, in contrast, obtain licenses to retransmit broadcast signals to their subscribers,” says the three-count 16-page filing.
Chet Kanojia really didn’t want to sit down to answer apparent contradictions about Aereo‘s patent applications, but today a federal judge ruled that’s what the streaming service CEO and CTO Joseph Lipowski are going to do. Re-affirming his June 20 order that Aereo hand over Kanojia and Lipowski for another hour of deposition with lawyers from suing broadcasters, Judge Henry Pitman pushed aside a slew of objections from the Barry Diller-backed company’s application for reconsideration and told the duo to make themselves available. As the copyright infringement complaint, which was first filed on March 1, 2012, weaves and grinds towards a 2014 trial start, the broadcasters’ attorneys want to probe the two about what their service really is and what Aereo’s patent applications really are. And the NY-based magistrate suggests that Aereo might have played fast and loose with the truth in a previous court win in their favor. “In opposing plaintiffs’ application for a preliminary injunction, Aereo offered expert testimony suggesting that its internet retransmission capability was not substantially different from what consumers could accomplish with off-the-shelf components,” noted Pitman in his 15-page order (read it here). “In their patent application, however, in an apparent effort to establish novelty, the inventors state that broadcast ‘content is generally only available for display on a traditional television. There is generally no simple way for a user to have this content available to their other video-capable devices.’ Although the two positions are not irreconcilable, there is a certain tension between them sufficient to warrant examination,” the judge added.