The ABCs Of Aereo: Streaming Service Wants “Something For Nothing”, Former Top Federal Lawyer Says

By and | Thursday April 17, 2014 @ 9:31am PDT

Editors Note: This is the second of three Deadline posts that lay out the issues in the Aereo case, which Deadline Legal Editor Dominic Patten will cover from the Supreme Court next week. Today: An interview with former Acting Solicitor General Neal Katyal, who is serving as an adviser to the broadcasters in their case against the streaming service. 

Related: The ABCs Of Aereo: What Is Aereo And Why Are Broadcasters Taking It To The Supreme Court?

On April 22, Aereo and major broadcastersAereo case will have their day in the Supreme Court. Broadcasters will say Aereo is stealing their copyrighted material, end of story. The Barry Diller-backed streaming service that launched in early 2012 will say it merely rents antennas to consumers so they can watch TV that’s already available for free over the public airwaves. Both sides will be represented by lawyers who know the Supreme Court well. David Frederick of D.C. firm Kellog Huber Hansen Todd Evans & Figel LLP has more than 40 SCOTUS appearances notched on his belt and will handle defendant Aereo’s arguments. Former Solicitor General Paul Clement, who has argued more 70 cases before the high court, will represent Disney, CBS, NBCUniversal, Fox and the other plaintiffs. He will have a half hour to make his points, unless the Justices give 10 minutes to the current Solicitor General’s office to argue on behalf of the plaintiffs.

Here’s the broadcasters’ argument from Neal Katyal, now a partner at international firm Hogan Lovells, who was picked by President Obama to serve as Acting Solicitor General from May 2010-June 9, 2011.

Senate Armed Services Committee Holds Hearing On Enemy CombatantsDEADLINE: So, let’s cut to the chase — what is this case really about?
KATYAL: I certainly think that streaming of the broadcasters’ signals is retransmission and blatantly violates the Copyright Law. Our case is can a company come along and yank broadcast signals out of the air and then package them and sell them to individual subscribers for a fee when the producers of that content aren’t compensated for it? The networks each year spend billions of dollars creating, producing, acquiring and distributing and marketing their content. Aereo is yanking the signals out of the air and selling them to people. So that’s what the case is about.

Related: Aereo Slammed One Last Time By Broadcasters Before SCOTUS Hearing

DEADLINE: Aereo would say that it complies with the Copyright Act and that broadcasters are trying to stem the use of innovative technology and stop the future from happening.
KATYAL: I think this idea that Aereo has some innovative new technology is an absolute red herring. The only thing innovative about Aereo is its legal strategy. It’s not people capturing the signal, its Aereo capturing the signal through antenna and then selling it to the entire American public and it’s Aereo who’s violating the Copyright Law by doing that. What Aereo is doing is grabbing the broadcasters’ signal from the air and then they’re retransmitting it. In 1976 Congress expressly said any device or process that retransmits a broadcast signal without the copyright holder’s permission is unlawful. So to me this is one of the easiest cases the Supreme Court is going to decide this year because it’s something that Congress settled. There maybe a number of interesting policy arguments about how we should have a different Copyright Law, but with respect to the Copyright Law we do have, it’s a very hard argument for Aereo. Read More »

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Aereo Slammed One Last Time By Broadcasters Before SCOTUS Hearing

By | Wednesday April 16, 2014 @ 5:22pm PDT

DJP LEGAL BADGEWith just days to go before they meet their Aereo foes face-to-face at the Supreme Court, the broadcasters this week took one last swipe at what they claim is the “blatant and unapologetic copyright infringement” by the … Read More »

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The ABCs Of Aereo: What Is Aereo And Why Are Broadcasters Taking It To The Supreme Court?

By and | Wednesday April 16, 2014 @ 10:01am PDT

Editors Note: The first of three Deadline posts that lay out the issues in the Aereo case, which Deadline Legal Editor Dominic Patten will cover from the Supreme Court next week. Today: A primer about Aereo and what’s at stake in the dispute with broadcasters.

U.S. Supreme Court justices are so mistrustful of technology that they bar TV cameras from their proceedings and require visitors to check their smartphones at the door.What Is Aereo But on April 22 they will take an hour to hear arguments in a case that could re-shape television and the Internet. All of the major broadcast companies are challenging the legality of an upstart streaming service: Aereo, a company backed by IAC chief Barry Diller that began to sign up subscribers in New York City in February 2012. The issues both sides will raise are complicated. But the controversy boils down to an important question: What rights do broadcasters and citizens have to content on the publicly owned airwaves?

Related: It’s On! – Supreme Court Agrees To Hear Aereo Case

Q: How does Aereo work?
A: Subscribers in the cities Aereo serves pay a minimum of $8 a month. That gives them exclusive access to one of its thousands of dime-sized antennas that pick up free, local, over-the-air broadcasts. The company then streams the live programming in the same local market to subscribers’ Web-connected TVs, computers, or mobile devices.

Aereo info graphic

Q: Does it just stream live TV?
A: Aereo also offers a remote storage DVR. Just like with a home DVR, each customer can choose programs to record, and then watch later with the same fast-forward and rewind capabilities. The difference is that the digital files are kept on Aereo’s servers, not on a hard drive in the home. Those who pay $8 per month get 20 hours of DVR storage each month and access to one antenna, while those paying $12 get 60 hours and access to two antennas.

Aereo mapQ: Where can people subscribe?
A: Aereo began in New York, and now also is available in Boston, Atlanta, Detroit, Cincinnati, Baltimore, Dallas, Austin, Houston, Miami, and San Antonio. It plans to launch in cities including Washington, DC, Philadelphia, Pittsburgh, Cleveland, Chicago, Indianapolis, Minneapolis, and Kansas City.

Q: Why does that bother broadcasters?
A: Aereo doesn’t pay local TV stations when it streams their programming. Broadcasters say that infringes on their copyrights. Read More »

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Aereo Says Its Service Will Be Ready For Google’s Chromecast On May 29

By | Thursday April 10, 2014 @ 12:36pm PDT

Watching TV broadcasts on a television set? What will they think of next? ChromecastWell, facetiousness aside, this may be one of the easiest and cheapest ways for people in markets served by Aereo — who don’t want to attach an … Read More »

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Deadline Big Media 79 – The Amazon Streaming Box Podcast

By and | Friday April 4, 2014 @ 4:06pm PDT

Deadline Big Media podcast 79In this week’s podcast, Deadline’s executive editor David Lieberman and host David Bloom wrap up the latest in the big Aereo case before the U.S. Supreme Court later this month, including briefs from an unexpected collection of supporters and financial backer Barry Diller’s comments on the TV service’s future if it loses. The two Davids also weigh Amazon’s rather tardy arrival as a purveyor of video-streaming devices with this week’s launch of the Amazon Fire TV; the Tribune Co.’s evolution as its digital wing buys one TV-oriented data company and relaunches another; and Discovery’s latest in a flurry of deals, as it launches a digital studio in partnership with two big-name Hollywood veterans, Ron Howard and Brian Grazer.

Listen to the podcast in your choice of audio formats here:
Deadline Big Media podcast 79 (.MP3 version)
Deadline Big Media podcast 79 (.M4A version)
Read More »

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Aereo Attracts Support From Dish Network, EFF & More For SCOTUS Hearing

By and | Wednesday April 2, 2014 @ 4:55pm PDT

Aereo-logo__130126232434-200x206__131008001115__131212200214__140110201424__140211193750With less than three weeks before Aereo argues its case in front of the Supreme Court, amicus briefs today supporting the subscription streaming service in its battle against the broadcasters were being filed fast and furiously. Supporters of the Barry Diller-backed company have until 11:59 PM ET to add their voices to the cause. On the plaintiff’s side, SAG-AFTRA, Viacom, Time Warner and Warner Bros Entertainment, the NFL and MLB are among those who have come out against Aereo. Add to that, the Obama administration filed a brief of its own supporting the broadcasters and a motion to argue during supremecourtthe 1-hour April 22 hearing before the High Court. Today’s briefs from Dish Network, the Electronic Frontier Foundation, the American Cable Association and more come less than a week after Aereo firmly responded to the broadcaster’s February 24 brief and the same day Diller said that Aereo could be “finished” if it loses before the SCOTUS. More briefs are expected throughout the evening — we’ll update as more come in. Here are a few highlights from ones submitted so far today:

Dish Network
Chairman Charlie Ergen has good reason to support Aereo. He, too, butted heads with broadcasters who objected to his Hopper DVR’s ability to automatically jump over their ads in recorded shows. He also owns Sling, a device that streams users’ live and recorded TV programs. “Aereo is in some ways novel, but it is also among a host of technologies that uses the Internet to offer consumers the ability to do what they always have more cheaply and conveniently,” Dish says in its brief. The technology, and others including Dish’s, “are like dumbwaiters, incapable of delivering a pail of water without the thirsty person tugging on ropes and pulleys. If an individual uses that dumbwaiter to fetch himself a video he recorded of Breaking Bad, the dumbwaiter manufacturer does not infringe a copyright in the show.” Read More »

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Barry Diller Says Aereo WIll Be “Finished” If It Loses Supreme Court Case: Video

By | Wednesday April 2, 2014 @ 7:35am PDT

The IAC chief, one of Aereo‘s top backers, told Bloomberg Television’s Market Makers that it’s “very possible that there’s some salvage. But Aereo would probably, as I say probably just because I can’t — I can’t see any path forward. It probably would not be able to continue in business.” … Read More »

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Deadline’s Best TV Stories Of The Week

By | Sunday March 30, 2014 @ 5:37pm PDT

The Art of War‘The Good Wife’ Bombshell: Story Behind The Shocking Exit, Showrunners Speak
By Nellie Andreeva
The Good Wife creators/showrunners Michelle and Robert King, discuss a major character’s exit, its impact on the show and what lies ahead.

CNN’s Piers Morgan Signs Off With Final Blast At U.S. Gun Laws (Video)
By Lisa de Moraes
Piers Morgan wrapped his three-year CNN run on Friday night with (gasp!) a full hour of discussion about the missing plane. But in his four-minute final remarks, he couldn’t resist taking a parting shot at the NRA. 
Read More »

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Aereo Blasts Broadcasters In Supreme Court Response Brief

By | Wednesday March 26, 2014 @ 7:11pm PDT

DJP LEGAL BADGEAereo may have agreed with broadcasters late last year that the best venue for their ongoing legal “war of attrition” is the Supreme Court. But as today’s response brief (read it here) to the plaintiffs reveals, that’s all the two sides agree on in this caseAereo-logo__130126232434-200x206__131008001115__131212200214. “This Court should not rewrite the Copyright Act in an effort to protect petitioners from lawful and logical advancements in technology or from the economic consequences of their transmitting works for free over the public airwaves,” said the Barry Diller-backed subscription streaming service in its filing today at the SCOTUS. “The ‘one-to-one’ transmissions from Aereo’s equipment – individual transmissions from personal recordings created from data received by individual antennas – do not constitute ‘public’ performances,” the dense, 100-page brief also noted one of the broadcasters’ primary complaints about the company. With the high court scheduled to hear oral arguments on the case on late next month, Aereo now must send in an amicus curiae brief of its own by April 2.

Related: Would The Supreme Court Upend The TV Business If It Sides With Aereo?

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Deadline Big Media 76: The Obama Against Aereo Podcast

Deadline Big Media ep 76In this week’s podcast, Deadline’s executive editor David Lieberman and host David Bloom look at the Obama administration’s unusual intercession in the Aereo Supreme Court case on behalf of the networks and the notable absence of tech industry involvement in the case so far.

They also try to make sense of John Malone’s latest complicated stock shuffle that affects SiriusXM and Charter Communications; check in on the many Big Media highlights from this week’s Deutsche Bank investor conference; break out the checkbook for that Amazon Prime price hike; and wonder how DreamWorks Interactive can be on track for both a $310 million global box office haul for Mr. Peabody & Shermanand a write-down of $84 million for that same film. Read More »

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White House Takes Rare Step Of Requesting To Argue Directly Against Aereo Before Supreme Court

By | Thursday March 13, 2014 @ 1:44pm PDT

DJP LEGAL BADGELast week, the Solicitor General’s office entered the Aereo legal fray with a dense brief filed at the Supreme Court on the side of the broadcasters. Turns out that was Round 1 for the government in this potentially game-changing case. This week, the Obama administration asked the court if it could argue its imgres-1point of view directly before the Justices at the April 22 hearing on the case. While not unprecedented, the amicus curiae request is unusual and a sign of just how high the stakes are in the case between the broadcasters and the Barry Diller-backed streaming service. “Because the Court’s decision in this case will likely address important questions about the scope of the public-performance right in the context of novel technologies for transmitting and viewing copyrighted audiovisual works using the Internet, the United States has a substantial interest in presenting its views on the question presented,” said Deputy Solicitor General Edwin Kneedler in a motion (read it here) filed with the SCOTUS on Wednesday. The Court has not yet responded, but the broadcasters  have given the government 10 minutes of their one-hour block of time before the Justices in which to make their case — literally and figuratively.

Related:
White House Backs Broadcasters In Aereo Case
Cablevision Opposes Aereo & Broadcasters At Supreme Court

Read More »

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Deadline’s Best TV Stories Of The Week

By | Sunday March 9, 2014 @ 5:00pm PDT

FilmLightingEquipmentLowerBroadwayNYC060709Pilot Locations 2014: New York Production Rises, Los Angeles Plummets, Texas Hot
By Nellie Andreeva – While California Gov. Jerry Brown is still “not committed” to expanding the state’s film and TV tax credit, Los Angeles is seeing another drop in broadcast pilot production to what appears to be an all-time low. New York, which also lured The Tonight Show franchise away from Los Angeles, returns this year as the most popular drama location and reinforcing its strong position in comedy.

Dish And Disney Finalize Output Deal That Ends Their Ad-Hopper Dispute
By David Lieberman – The companies have officially announced a “wide-ranging” deal, which “will result in dismissal of all pending litigation between the two companies, including disputes over PrimeTime Anytime and AutoHop.” The agreement calls for Dish to disable AutoHop functionality for ABC content within the C3 ratings window. The pact also for the first time allows Dish customers to access Disney’s authenticated live and VOD products.

Aereo-logo__130126232434-200x206__131008001115__131212200214__140110201424__140211193750White House Backs Broadcasters In Aereo Case
By David Lieberman and Dominic Patten – The Solicitor General’s office put the Obama administration solidly in the anti-Aereo camp with a 40-page amicus brief filed with SCOTUS.

‘The Wire’s David Simon Takes On Oprah-Produced HBO Mini On Martin Luther King
By Mike Fleming Jr. – I’m hearing that David Simon, the architect of the HBO series The Wire, Homicide and most recently Treme, will spearhead the HBO six-hour MLK miniseries adaptation of America: In The King Years, based on the celebrated book trilogy by Pulitzer Prize-winner Taylor Branch. Read More »

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UPDATE: Appeals Court Denies Aereo’s Attempt To Overturn Six-State Injunction

By | Friday March 7, 2014 @ 10:38am PST

DJP LEGAL BADGEUPDATE, 10:38 AM: Unsurprisingly, Aereo is not happy with the denial today of its attempt to overturn the six-state injunction against the Barry Diller-backed service. “We are disappointed in the 10th Circuit Court of Appeals 2:1 decision … Read More »

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White House Backs Broadcasters In Aereo Case

By and | Monday March 3, 2014 @ 2:26pm PST

Aereo-logo__130126232434-200x206__130401161322__130529202533__130710203958The big boys came out today on the side of the broadcasters in their upcoming appearance in front of the Supreme Court in the Aereo case. The solicitor general’s office put the Obama administration solidly in the anti-Aereo camp with a 40-page amicus brief (read it here) filed with the SCOTUS today. The broadcasters say that Aereo infringes on their copyrights by streaming their over-the-air signals without licenses or compensation. Aereo says that it simply leases out antennas and technology that consumers can already use to watch broadcast TV for free.

Related:
Aereo Supreme Court Arguments Set For Late April
Would The Supreme Court Upend The TV Business If It Sides With Aereo?

“The proper resolution of this dispute is straightforward,” the brief states. “Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas … respondent does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, respondent operates an integrated system—i.e., a ‘device or process’—whose functioning depends on its customers’ shared use of common facilities. The fact that as part of that system respondent uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content ‘to the public.’ Like its competitors, respondent therefore must obtain licenses to perform the copyrighted content on which its business relies. That conclusion, however, should not call into question the legitimacy of businesses that use the Internet to provide new ways for consumers to store, hear, and view their own lawfully acquired copies of copyrighted works.”

Related:
FilmOn X Loses Bid To Join Aereo Supreme Court Case
Cablevision Opposes Aereo And Broadcasters At Supreme Court

The high court agreed in January to hear the case, and briefs from the broadcasters were due on February 24 and today. Aereo must submit its response to the petitioner’s brief by March 26 and send in an amicus curiae brief of its own by April 2. Read More »

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Cablevision Opposes Aereo And Broadcasters At Supreme Court

By | Monday March 3, 2014 @ 1:04pm PST

The cable company has a stake in the high court’s view of Aereo: cablevisionCablevision opened the door for the streaming service in 2008 when it beat back a challenge by broadcasters to its remote storage DVRs. Courts in that case agreed with  the cable company that there was little difference, in legal terms, between a DVR that stored shows miles away on a remote server vs a set-top box. Aereo says the same principle applies to its remote antennas: Aereo-logo__130126232434-200x206__130401161322__130529202533__130710203958They pick up over-the-air TV the same way consumers would if they had an antenna at home. But Cablevision says, in an amicus brief today, that it disagrees with arguments from Aereo and broadcasters alike. The streaming service should be deemed illegal, Cablevision says, because it’s “functionally identical to a cable system” that must pay broadcasters for the right to retransmit their over-the-air signals. “The fact that Aereo delivers programming on an individualized basis through mini-antennas and hard-drive copies does not change the basic nature of its service.” But Cablevision says that broadcasters go too far when they argue that their copyrights give them broad rights to determine what happens with the shows that they transmit. That view, if upheld, would “imperil nearly any cloud technology that enables remote storage and playback” such as Amazon’s MP3 Store and player. Although broadcasters say they wouldn’t threaten such services, Cablevision says they “advance an overbroad prior performance theory and then, in an effort to avoid its absurd results, engraft on an ad hoc exception for cloud technologies.” Read More »

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FilmOn X Loses Bid To Join Aereo Supreme Court Case

By | Monday March 3, 2014 @ 9:05am PST

DJP LEGAL BADGEAlki David‘s streaming service will get a chance to participate in the broadcasters’ case against Aereo before the Supreme Court on April 22. FilmOn X filed a motion for leave to intervene in early February on … Read More »

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Aereo Wins Short Reprieve From Six-State Injunction

By | Tuesday February 25, 2014 @ 3:23pm PST

DJP LEGAL BADGEOnce again the Aereo legal roller coaster has whipped up after a steep downward turn. Less than a week after being slapped with a 6-state injunction, the Barry Diller-backed streaming service today has won a 14-day reprieve … Read More »

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ABC Warns Supreme Court That It May “Reconsider” Free TV If Aereo Wins

By | Monday February 24, 2014 @ 1:22pm PST

Aereo-logo__130126232434-200x206__131008001115__131212200214__140110201424__140211193750That would be a problem, the network says in a brief filed today, because “Millions of Americans still rely on free over-the-air broadcasts to receive television programming.” What’s more, “broadcast television not only continues to carry the majority of the country’s most popular shows, … Read More »

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UPDATE: Aereo Says It’s “Disappointed” With Six-State Injunction From Federal Judge

By | Wednesday February 19, 2014 @ 5:10pm PST

DJP LEGAL BADGEUPDATE, 5:10 PM: As it has from the beginning back in 2012, the latest legal battle between the broadcasters and Aereo comes down to whether the streaming service is engaging in a private or public performance. Aereo says the former and the broadcasters say the latter, and today a federal judge in Utah agreed with the broadcasters and shut the service down in six states as the two sides prepare to fight it out in front of the Supreme Court in late April. Unsurprisingly, Aereo CEO and founder Chet Kanojia is “disappointed” with today’s developments. Read the statement he provided Deadline here:

Aereo-logo__130126232434-200x206__131008001115__131212200214__140110201424__140211193750We are extremely disappointed that the District Court in Utah has chosen to take a different path than every other Court that has reviewed the Aereo technology.  Consumers have a fundamental right to watch over the air broadcast television via an antenna and to record copies for their personal use. The Copyright Act provides no justification to curtail that right simply because the consumer is using modern, remotely located equipment. We are very sorry for the effect on our valued customers in the Tenth Circuit and we will pursue all available remedies to restore their ability to use Aereo.

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