Broadcasters Petition Court for New Hearing in Aereo Case

Petition is next step to protect copyright

Two weeks after the Second Circuit Court of Appeals refused to shut down Aereo, New York TV station owners petitioned the court for an "en banc" hearing. 

"This petition is an important next step in ensuring the protection of our copyrighted material," said a statement from plaintiffs Fox, Univision, WNET and the Public Broadcasting Service.

Backed by former network TV exec Barry Diller, Aereo streams over the air TV signals to subscribers who rent an individual, dime-sized antenna. From the moment the service launched last year, broadcasters screamed foul, filing suit against Aereo for copyright infringement.

But the New York court has so far ruled in Aereo's favor, buying the defendant's argument that Aereo's service is not offering a public performance, but a private one, and resembles a similar decision regarding Cablevision's remote-storage DVR service in 2008.

"That erroneous analysis has now spawned an obviously incorrect decision that threatens to cause massive disruption to the television industry, and will adversely impact the public's access to the quality and diversity of programming available through broadcast television," attorneys for the petitioners wrote.

The 2-1 decision was not unanimous and was strongly dissented by Judge Chin, who called Aereo's technology platform a "sham" and a "Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law."

Broadcasters are like dogs with bones when it comes to Aereo and defending their copyright. In addition to an en banc hearing, broadcasters are also ready to go to trial early next year on the merits. The case could also end up in the Supreme Court because of broadcaster success in convincing a federal court in California to shut down Aereo-wannabe Aereokiller that was using the same approach as Aereo.

If all else fails, Chase Carey, News Corp. president and CEO, offered the nuclear option, threatening to turn the TV network into a cable channel. Other networks fell in line, including CBS' Les Moonves and Univision's chairman Haim Saban.