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Cablevision to Aereo: Don't compare your case to ours

To defend itself against a copyright complaint brought by TV broadcasters, Aereo cited a 2008 court victory won by Cablevision. But Cablevision says Aereo is not entitled to the same protection.

Cablevision, a cable company that might have been a natural ally to Aereo, has instead come out against the fledgling Internet TV service.

Aereo CEO Chet Kanojia Greg Sandoval/CNET

Cablevision, the country's eighth largest cable provider, filed an amicus brief with the U.S. District Court in New York on Friday and told the court that the landmark legal ruling it won in 2008 shouldn't protect Aereo from the charges of copyright violation brought against it by a group of some of the nation's biggest TV broadcasters.

Aereo is the Barry Diller-backed Web video service that uses dime-size TV antennas to capture over-the-air TV broadcast signals and then streams the images to users via the Internet. Two separate groups of broadcast companies, which included NBC, Fox, CBS (parent company of CNET), and ABC, filed lawsuits earlier this year alleging Aereo violates their copyrights.

Billions of dollars are supposedly riding on the case's outcome. The broadcasters say that if Aereo is allowed to continue operating, their ability to charge for retransmission fees is threatened. If Aereo is allowed to exploit the free TV signals then cable companies will do the same.

If that happens, the broadcasters say, they would be forced to charge for over-the-air broadcasts. Free viewing of the Super Bowl and other shows would cease to exist, say the broadcasters.

Aereo says that's nonsense and insists that its service will only provide viewers with another way to access TV. Analysts have said that some cable companies could eventually exploit Aereo's legal loophole to at least scale back the fees they pay broadcasters.

In the first round of this legal battle, Aereo prevailed. In July, U.S. District Court Judge Alison Nathan denied a request by the broadcasters for a preliminary injunction against the startup. Aereo based its arguments on a 2008 decision by the U.S. Court of Appeals for the Second Circuit in Cartoon Network v. CSC Holdings, commonly referred to as the Cablevision decision.

Many of the same broadcasters now suing Aereo filed a copyright complaint against Cablevision in 2006 after the cable company announced the development of a TiVo-like digital video recorder. Broadcasters argued then that playing back thousands of individual streaming performances was a public performance. In 2008, however, the appeals court ruled that the automated copying of shows when requested by users, as well as the storing of content on remote servers, was not copyright infringement.

The Cablevision decision protects Aereo for the very same reason, Aereo argued in court. But on Friday, Cablevision disputed that Aereo's position is similar to its own.

"The critical legal difference is that Cablevision pays statutory licensing and retransmission consent fees for the content it retransmits," Cablevision said in court documents. "Aereo does not."