Supreme Court agrees to hear Aereo case

The US Supreme Court granted a writ of certiori -- jargon for "OK, we'll hear this one" -- in the case pitting the networks against the streamer of over-the-air broadcasts.

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Joan E. Solsman
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An array of Aereo antennae
Aereo's arrays of dime-size antennas. Aereo

The US Supreme Court has agreed to hear broadcasters' case against Aereo, the streamer of over-the-air television programming.

The terse order published on the Supreme Court's Web site simply said that the court granted a writ of certiori in the case, which means at least four justices agreed that the case should be heard, and that Justice Samuel Alito didn't take part in the decision.

Aereo last month welcomed the prospect of a US Supreme Court caseto weigh in on the legality of its service.

Aereo CEO Chet Kanojia said in a statement Friday that Aereo has "every confidence" that the court will decide in its favor.

"This case is critically important not only to Aereo, but to the entire cloud computing and cloud storage industry," he said, reiterating past comments that the broadcasters' fight against Aereo is a proxy attack on a decision known as Cablevision, which is integral to the cloud computing and storage industry. "If the broadcasters succeed, the consequences to consumers and the cloud industry are chilling."

CBS, which is the parent company of CNET, said in a statement that it believes "Aereo's business model, and similar offerings that operate on the same principle, are built on stealing the creative content of others."

Fox, in a statement made on behalf of several networks such as PBS and Univison, said the networks were 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," the broadcasters' statement said.

ABC and NBC said that they were gratified the court granted the petition "to review issues that both sides recognize as significant" and they are looking forward to making their case.

The television networks 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, Fox, and Comcast's NBCUniversal sued Aereo, alleging that the service violates their copyrights and that Aereo must pay them.

Given the sheer volume of petitions the Supreme Court receives, it's highly unusual for a case to be heard there. Of the roughly 10,000 petitions received every year, the court grants and hears oral arguments for about 75 to 80, less than 1 percent.

The decision to hear the Aereo case is even more atypical in that different lower courts haven't reached different decisions on the case yet -- what is known as a circuit split. It's a common rationale for justices to grant certiori and agree to hear cases if there is a circuit split.

However, though there is no official circuit split, the networks have been filing lawsuits against Aereo in virtually every district it launches, creating multiple identical lawsuits across the country.

And although Aereo has largely come out on top in the courts thus far, FilmonX, a company offering a service similar to Aereo's, hasn't had as much success. Though it's unclear whether Aereo and FilmonX are based on the same class of technology, injunctions against FilmonX have set up the potential for conflicting decisions to affect the favorable Aereo ones down the road.

Part of the reason the court agreed to hear the case may be to weigh in on its legal underpinnings: a case known as Cablevision, after the cable operator 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. It's worth noting that the Supreme Court declined to hear an appeal of the Cablevision case in 2009.

Cablevision and other cable operators have sided with Aereo, saying that the legal battle against the startup has bigger implications for many categories of cloud storage.

Friday, Cablevision issued a statement say that while it is confident that Aereo's service violates copyright, "the Supreme Court will find persuasive grounds for invalidating Aereo without relying on the broadcasters' overreaching -- and wrong -- copyright arguments that challenge the legal underpinning of all cloud-based services."

Updated at 12:20 p.m. PT: With Aereo statement.

Updated at 12:30 p.m.: With broadcasters' statements.

Updated at 1:40 p.m.: With background and Cablevision comment.