The cable company has a stake in the high court’s view of Aereo: Cablevision 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: They 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.”
They have been given a date. The broadcasters and Aereo will argue their case before the Supreme Court on April 22 at 11 AM, the court announced today. SCOTUS agreed on January 10 to hear arguments on the petition that ABC, CBS, Fox, NBC and several other broadcasters submitted in October. The broadcasters want the High Court to review an April 1, 2013 ruling by the U.S. Court of Appeals in New York that confirmed a District Court decision and rejected their request for a preliminary injunction against the Barry Diller-backed streaming service. However, there are still a few more steps before the parties show up in Washington D.C. Briefs are due from the broadcasters on February 24 and March 3. 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. Like in the decision by the Court to hear the case in early January, Justice Samuel Alito will be recused from the April arguments because his family owns Disney stock. He’s “considered to be pro-business/conservative, so this could be viewed favorably for Aereo,” says Susquehanna Financial Group’s Thomas Claps. If the remaining eight justices split equally, then the District Court’s pro-Aereo decision would stand.
That’s still a big question for broadcast TV investors today following the U.S. Supreme Court’s decision on Friday to hear the industry’s claim that Aereo infringes on their copyrights with it streams their over-the-air programming without permission. Most broadcast company stocks including Sinclair, Gannett, and Gray Television are down today, slightly more than the overall market. But Wall Street analysts — who typically like to encourage people to buy stocks — mostly urge investors to relax. The most prevalent concern is that broadcasters, if they lose at the Supreme Court, might make good on their threats to only offer their hit shows on pay TV. That could sting as they “lose reach, ratings from broadcast-only homes, and reverse network [compensation]” from affiliates, says Janney Capital’s Tony Wible. Pivotal Research’s Brian Wieser also fears that if broadcasters scale back their over-the-air shows then “the political ill-will that would follow… would be a major negative.” And political leverage is broadcasters’ ace in the hole. If they lose at the Supreme Court then “we expect they would pursue legislation and involve Congress” to change the law against Aereo, Credit Suisse’s Michael Senno says. The industry has one of the most powerful lobby groups in Washington. Even if lawmakers are unmoved, he says not to worry: Aereo doesn’t have a compelling service, he says, and cable or satellite companies that might want to create a copycat service to avoid paying retransmission consent fees face “a number of hurdles” before they could “leverage this technology, if ever.” Wells Fargo’s Marci Ryvicker also tells investors to chill.
UPDATED WITH REACTIONS: The broadcasters and Aereo are getting their day in the top court in the land after all. The Supreme Court agreed today to hear arguments on the petition that ABC, CBS, Fox, NBC and several other broadcasters submitted on October 11. “The petition for a writ of certiorari is granted. Justice Alito took no part in the consideration or decision of this petition,” said the Court in its order today. No word yet on when SCOTUS will hear oral arguments in the case — with the Court’s already full schedule, at this point it could only come during the two weeks they hear arguments in April or next term. “We look forward to presenting our case to the Supreme Court and we have every confidence that the Court will validate and preserve a consumer’s right to access local over-the-air television with an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice,” Aereo CEO Chet Kanojia said after the order was revealed. The petitioning broadcasters also responded. “We are pleased the Court has agreed to hear this important case. We are confident the Court will recognize that this has never been about stifling new video distribution technologies, but has always been about stopping a copyright violator who redistributes television programming without permission or compensation,” said Fox, Univision and PBS in a joint statement. Added CBS: “We believe that Aereo’s business model, and similar offerings that operate on the same principle, are built on stealing the creative content of others. We are pleased that our case will be heard and we look forward to having our day in court.” Said ABC and NBC together: “We are gratified that the Supreme Court has granted our petition to review issues that both sides recognize as significant, and we look forward to making our case to the Court.”
If you thought the legal battle between Aereo and the broadcasters at the Supreme Court would take a break for the holidays, think again. Today, ABC, CBS, Fox, NBC and several other broadcasters fired back at the …
Just 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 federal 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.
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
The National Labor Relations Board can go ahead with its administrative trial this month on charges that Cablevision resorted to intimidation, bribery and harassment to stop some of its workers in the Bronx from joining the Communications Workers of America (CWA). Chief …
The cable company is responding to its loss on Friday at the U.S. Court of Appeals in D.C.: Justices upheld the National Labor Relations Board’s authority to hold an administrative trial this month on charges that Cablevision resorted to intimidation, bribery and harassment to stop some of its workers in the Bronx from joining the Communications Workers of America (CWA) — part of a long-running series of disputes between the company and the union. But Cablevision now wants Supreme Court Chief Justice John Roberts — the Circuit Justice for D.C. — to stay the Appeals Court decision. Cablevision argued that the NLRB lacks a quorum. The company says that President Obama’s recess appointments were illegal because they were made while the Senate was on an intrasession break, not between sessions. Cablevision also says that an appointment can only be made to positions that open up during a recess.
It was a nice stroke of luck for MSNBC today during its coverage of the Supreme Court’s decisions rejecting the federal Defense of Marriage Act and essentially overturning California’s Proposition 8 that prevented same-sex couples from marrying in the state. President Obama interrupted the live interview with a …
Careful to not make any live on-air mistakes, the networks moved cautiously today reporting the Supreme Court’s same-sex marriage rulings. At 7 AM PT, the Court released its last set of rulings for the current with two same sex marriage decisions. With Today’s Matt Lauer and Savannah Guthrie heading coverage, NBC was first to go to a Special Report with their legal correspondent Pete Williams first to declare at 7:02 that the Court had struck down the federal Defense of Marriage Act. With George Stephanopoulos in the chair, ABC followed shortly afterward. CBS did not hit the Special Report graphic button until 7:04, with Charlie Rose and Norah O’Donnell coming on to talk to the CBS correspondent outside the Supreme Court building. CNN reported at 7 AM that the Court had made decision but, not wanting to repeat their mistake of initially getting the Court’s 2012 Obamacare ruling wrong, waited until 7:08 to get into the actual ruling itself. FNC reported the decision at 7:04.
UPDATE, 12:04 PM: The MPAA says that today’s Supreme Court decision “will hinder American businesses’ ability to compete overseas to the detriment of the long-term economic interests of the United States, and particularly its creative industries.” The trade group adds that it will “study the decision further before determining the most appropriate action for us to take.”
PREVIOUS, 9:55 AM: The 6-to-3 decision just handed a big defeat to the MPAA and other content providers by potentially undermining companies’ ability to charge different prices for books, CDs, DVDs, software, video games and other works in different countries. In the case, Kirtsaeng v John Wiley & Sons, entertainment companies sided with the book publisher against an entrepreneurial Thai college student studying in the U.S. Supap Kirtsaeng discovered that textbooks cost far less in Thailand than in the U.S. He turned that into a business, importing textbooks that he re-sold here for less than the publisher charged. Wiley said that violated its copyright; Kirtsaeng said it complied with the first-sale doctrine that enables people to freely re-sell content that they’ve bought. The MPAA and RIAA said in a brief supporting Wiley that extending the first-sale doctrine to works sold abroad “could impede authors’ ability to control entry into distinct markets, limit their flexibility to adapt to market conditions, or undermine territorial licensing agreements.”
John McTiernan has run out of ways to get out of serving a year in prison for his role in the Anthony Pellicano wiretapping scandal. On Monday, the Supreme Court decided it would not hear the Die Hard director’s appeal to reverse his guilty plea in the case. McTiernan was sentenced to 12 months behind bars in October 2010 after pleading guilty that summer to two counts of making false statements to the FBI in 2006 and one count of perjury for lying to a federal judge while trying to withdraw a guilty plea. McTiernan had played fast and loose with the truth with the bureau: He denied ever talking about wiretapping with Pellicano. However, the FBI had recordings of the Hollywood P.I. talking about McTiernan hiring him to wiretap producer Chuck Roven during the making of 2002′s Rollerball. Pellicano is currently serving 15 years in jail on racketeering charges.
“Most of the American people would see 15-second takeouts, and they wouldn’t be characteristic,” U.S. Supreme Court Justice Antonin Scalia tells C-SPAN’s Brian Lamb in an interview to be broadcast this Sunday. Lamb has long championed cameras in courtrooms including the Supreme Court — and Scalia has …