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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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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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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Supreme Court Decision To Hear Aereo Case Expected This Month

By | Monday January 6, 2014 @ 9:42am PST

DJP LEGAL BADGEWhether or not the nation’s highest court decides to hear the broadcasters’ case against Aereo could be determined in the next few weeks. The Supreme Court’s new 2014 calendar has Conference days set for January 10, 17 … Read More »

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UPDATE: Justine Sacco Fired Over AIDS Tweet Controversy; Ex-IAC PR Exec Apologizes

By and | Sunday December 22, 2013 @ 9:15am PST

sacco__131221043402-150x1504TH UPDATE: Issuing a statement to South African newspaper The Star and ABC News, SA-born PR pro Justine Sacco apologized for the offensive AIDS Tweet that led to her firing from Read More »

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Bring It On – Aereo Says It’ll Fight Broadcasters In Supreme Court

By and | Thursday December 12, 2013 @ 11:52am PST

DJP LEGAL BADGEJust more than two months to the day after broadcasters petitioned the Supreme Court to overturn a denied injunction against the Barry Diller-backed streaming service, Aereo today responded with an unexpected battle cry of “bring it on”. “We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court. While the law is clear and the Second Circuit Court of Appeals and two different Aereo-logo__130126232434-200x206__131008001115federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter”,  said Aereo CEO Chet Kanojia today as the company filed a brief (read it here) with the Court. “We want this resolved on the merits rather than through a wasteful war of attrition”. Since Aereo’s 2011 launch, broadcasters have insisted in various jurisdictions and legal actions that the company is breaking the law by transmitting their shows to its Internet subscribers without paying a license fee. Today’s 31-page response and lack of objection to the broadcaster’s petition now raises the stakes to a winner-take-all proposition.

Related: ABC Boston Affiliate Launches Aereo Appeal Read More »

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ABC Boston Affiliate Launches Aereo Appeal

By | Tuesday December 10, 2013 @ 1:49pm PST

DJP LEGAL BADGEJust over two months to the day that Hearst-owned WCVB-TV was denied its preliminary injunction motion against the Barry Diller-backed streaming service, the Boston ABC affiliate has began its predictable appeal. “Simply put, this case affects the very future of over-the-air broadcasting as we know it,” says the distinctly not understated Aereo-logo__130126232434-200x206__130401161322__130529202533__130710203958__130809171259__130826231936__130910172430__131010150034160-page appeal made Monday to the First Circuit (read it here).  As others have argued about Aereo in other cases, part of their latest copyright argument against the service is that Massachusetts-based federal District Judge Nathaniel Gorton didn’t know what he was talking about in his October 8 order. “In denying WCVB’s public performance argument, the district court failed to engage in any independent analysis and appears to have relied exclusively on the reasoning of a Second Circuit case, which has been harshly criticized by copyright scholars and had not been followed by any other court outside that circuit,” asserts the filing. This week’s latest Aereo legal action comes as Disney, CBS, NBCUniversal, WNET, Fox, and Univision await to learn if the Supreme Court will hear their potentially game changing October 11 submitted petition to review a 2012 ruling not to shut Aereo down pending a trial. It also comes as Aereo announced plans to expand to new markets the likes of Detroit and Denver and has been slapped with a second injunction motion in Utah.

Related: Aereo CEO Says Cable Companies Would Be Logical Partners
Read More »

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Barry Diller Honored By Broadcasters Even Though They’re “Suing Me”

By | Wednesday October 16, 2013 @ 12:28pm PDT

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.” Read More »

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Aereo Beats ABC Boston Affiliate Injunction Demand

By | Thursday October 10, 2013 @ 8:15am PDT

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. Read More »

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Tina Brown Out At Daily Beast: Report

By | Wednesday September 11, 2013 @ 12:06pm PDT

Looks like founding editor Tina Brown‘s time at the Barry Diller-owned The Daily Beast is finished. Diller’s IAC will not be renewing the former New Yorker and Vanity Fair editor’s contract in January, say news reports today. … Read More »

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ABC Boston Affiliate Hopes Local Aereo Case Repeats FilmOn Injunction

By | Tuesday September 10, 2013 @ 10:40am PDT

We knew that they were going to be joined at the legal hip soon enough, but that was really fast. One day after a federal court in D.C gave broadcasters an almost nationwide injunction against streaming service FilmOn X, the Hearst-owned Boston station WCVB-TV made damn sure that the judge in its suit against the Barry Diller-backed Aereo knew about that victory and the legal logic behind it. “Although the defendant in that case is different, the Court expressly assumed that the services and technology used by that defendant were, for all relevant purposes, the same as Aereo’s services and technology,” said the September 6 bullet point notice from the ABC affiliate (read it here). “The Court expressly rejected the argument, also asserted by Aereo here, that the use of multiple, individual transmissions rendered performances private,” added the three-page filing which was accompanied by the D.C. District Court opinion on Alki David-owned FilmOn X. WCVB-TV filed a copyright infringement suit and sought an injunction against Aereo in Boston in early July. The two have been throwing filings back and forth since with a hearing on the initial suit and the injunction scheduled for next week in Massachusetts federal court. Read More »

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Aereo Accused Of “Technological Shell Game” By Boston ABC Affiliate

By | Monday August 26, 2013 @ 4:32pm PDT

The battle of Boston continues. Just more than two weeks after Aereo slammed Hearst-owned WCVB-TV for its July 10 copyright suit and injunction request against the Barry Diller-backed streaming video service, the plaintiff has returned fire. In a 12-page reply (read it here) filed Friday in federal court in Massachusetts, the ABC affiliate says Aereo “engages in a technological shell game to avoid the plain wording of the Copyright Act.” Last week’s filing once again asks the court to grant a preliminary injunction shutting Aereo down in Boston, where it debuted at the end of May. In its August 7 opposition to the initial complaint, Aereo said that it is not infringing anyone’s copyright but simply providing an antenna and remote DVR service to customers for broadcasts that consumers already get for free. The streaming service also noted that the claims of WCVB-TV were very similar in nature and kind to the unsuccessful NYC-based attempt by broadcasters that the Second Circuit affirmed in April. That case is now back in District Court while Aereo has expanded from its first site in NYC to Boston, Atlanta, Utah, Chicago and Houston, Dallas and Miami next month.

Related: Fox Considering Taking Aereo To Supreme Court Read More »

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Aereo Fires Back In Boston ABC Affilate Copyright Suit

By | Friday August 9, 2013 @ 10:12am PDT

Nearly a month after WCVB-TV filed a copyright infringement suit and sought an injunction against the Barry Diller-backed streaming video service, the much litigated Aereo says the Hearst-owned station has its facts wrong. “Hearst cannot claim harm from consumer use of individual antennas because consumers are entitled to use them. Further, Hearst has not alleged (much less demonstrated) any current harm or concrete future harm. It alleges only the possibility of future harm. Such speculations cannot warrant the extraordinary remedy of a preliminary injunction.” says the company’s memorandum in opposition filed on August 7 (read it here). “In contrast, the harm to Aereo if an injunction issued would be devastating and irreparable,” adds the Massachusetts federal court filing seeking a denial of Heart’s request for a preliminary injunction

Related: Chase Carey: Threats To Big Media Just “Noisy Headlines”
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Ben Silverman Negotiating To Extend Deal With IAC

By | Tuesday July 30, 2013 @ 10:15am PDT
Nellie Andreeva

With fifteen months to go on Ben Silverman‘s current deal with Barry Diller’s IAC, the Electus founder and chairman is deep in negotiations with IAC about an extension. The talks are drawing a lot of … Read More »

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Aereo Slapped With Copyright Suit By Boston ABC Affilate

By | Wednesday July 10, 2013 @ 1:46pm PDT

At this rate there could be more Aereo lawsuits than subscribers. The Barry Diller-backed streaming video provider has been taken to court by another broadcaster this week as Hearst-owned Boston ABC affiliate WCVB-TV filed … Read More »

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Three Mogul Enemies Will Face Off Friday On 2013 Camp Allen’s Big Media Panel

Allen & Co Allen & Co Investment ConferenceHollywood moguls are arriving at the 31st annual Allen & Co investment conference in Sun Valley starting today — and this time there’s something fun awaiting them. For years now the … Read More »

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D11 Confab: Jeff Zucker Slams Fox News & MSNBC, Says CNN Covers “More”

By | Wednesday May 29, 2013 @ 1:09pm PDT

“Those two channels are covering political news. We’re covering politics and much more,” Jeff Zucker said today of Fox News and MSNBC. “Our competition now is two political channels that have actually left most of the actual news coverage to the side,” he also said. The CNN chief was appearing Wednesday with IAC chair Barry Diller at this year’s D11 conference in Ranchos Palos Verdes. “News is how you define it, we define it broadly as news and information. We’re expanding the audience that is watching CNN. In order to be successful, we need to bring new viewers,” he added stressing that elements of CNN programming have more in common now with Discovery and Nat Geo than FNC and MSNBC. “The key to us is to make CNN essential on whatever platform it is on,” Zucker noted. He added that his cable news rivals “do a good job” at what they cover.

Related: Barry Diller Confirms Newsweek Is For Sale, Says Aereo Expanding Further

“Protecting the brand is the key and one of the things I’ve been so warmed by is how strong and vibrant the CNN brand continues to be even when their ratings have not been what they used to be,” Zucker responded to a question from the audience about some of the less than hard news stories the network has covered since he took over. “I don’t think that hurt the CNN brand, he said of the network’s extensive coverage of the crippled Carnival Triumph cruise liner earlier this year. Zucker also was on the defensive about errors that CNN have made under his watch. “We made a mistake in Boston and we corrected it within 45 minutes of airing. The Boston Globe, who I think will probably win the Pulitzer Prize for their Boston coverage, didn’t correct for hours,” he said of the cable news network’s incorrect on-air assertion that an arrest had been made in the Boston Marathon bombing case.

Related: CNN’s Jeff Zucker Says News & Generational Change Will Mark ‘New Day’ Read More »

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