Aereo to broadcasters: Supreme Court? Bring it on

Aereo will not oppose broadcast networks' petition for the US Supreme Court to rule on the service's legal merits, but getting to the Supreme Court is still a long shot.

An array of Aereo antennae
Aereo's arrays of dime-sized antennae. Aereo

Aereo on Thursday said it will not oppose broadcast television companies' petition for the US Supreme Court to rule on the legality of the online service that streams over-the-air programming.

"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," Chief Executive Chet Kanojia said in a statement. "We want this resolved on the merits rather than through a wasteful war of attrition."

Television broadcasters in October petitioned the Supreme Court to get involved in their fight against Aereo.

Aereo, which is backed by IAC Chairman Barry Diller, uses tiny individual antennas to let consumers watch live, local broadcasts on some Internet-connected devices and store shows in a cloud-based DVR. Television giants including Disney's ABC, CBS (the parent of CNET), Fox, and Comcast's NBCUniversal sued Aereo, alleging that the service violates their copyrights and that Aereo must pay them.

Even though Aereo isn't opposing the petition, that doesn't make a Supreme Court case a sure thing. All petitions to the Supreme Court have a long shot of being granted. Of the roughly 10,000 petitions received every year, the court grants and hears oral arguments for about 75 to 80, less than one percent.

The court tends to select cases that lower courts have ruled on in different ways or those that address issues of national importance. So far, the Aereo litigation hasn't resulted in what is known as a "circuit split," where two courts reach diverging opinions, and it's a stretch to consider this issue to be one of national social significance.

Aereo's CEO Chet Kanojia talking to a group of start-ups in New York
Aereo founder Chet Kanojia Joan E. Solsman/CNET

Thursday in his statement, Kanojia said Aereo is relying on a long-standing decision commonly referred to as Cablevision, after the cable company that won its court battles against media companies to offer network DVR, a cloud-based recording system that doesn't require recording hardware in the home.

The Supreme Court declined to hear the appeal to that case by the entertainment companies in 2009.

"The broadcasters' filing makes clear that they are using Aereo as a proxy to attack Cablevision itself," said Kanojia.

Earlier Thursday, Cablevision released a report saying that, despite its finding that Aereo violates copyright laws, the company strongly rejects anti-Aereo arguments made by these broadcasters, calling them an the attempt by the networks to overturn the remote DVR principles of the Cablevision decision that are "overreaching and damaging."

Charter, another cable company, later issued a statement supporting Cablevision's position on remote DVR in the Aereo case, without getting into the legal merits of Aereo itself.

ABC, CBS, Fox, and NBC declined to comment on Aereo's decision not to oppose the Supreme Court petition.

Update, 1:30 p.m. PT: Adds more of Aereo's statement, information about Cablevision and Charter, and broadcasters declining to comment.

 

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