Aereo Inc., the Barry Diller-backed online TV service, asked a federal judge to dismiss copyright infringement claims by the broadcast TV networks, which failed to persuade an appeals court to shut down its operation.
Aereo yesterday requested judgment without a trial from U.S. District Judge Alison Nathan in New York on the ground that the federal appeals court ruled that the service didn’t violate the networks’ right to public performance of its programming, which requires a license.
Broadcasters including Walt Disney Co.’s ABC, Comcast Corp.’s NBC and CBS Corp. unsuccessfully petitioned the U.S. Court of Appeals in New York to overturn Nathan’s order denying a preliminary injunction that would have put New York-based Aereo out of business.
The networks sued Aereo in March 2012, claiming that it infringed copyrights by capturing their over-the-air signals and by retransmitting the programming to subscribers on computers and smartphones. Aereo’s transmissions are public performances and require licenses, they said. Its service would devalue their programming and cut viewership, jeopardizing revenue from advertisers and pay-TV providers, according to the networks.
The appeals judges said in a mixed decision that Aereo’s transmissions are private rather than public performances.
“If they are not public performances, it needs no such license,” the judges said.
“Although the technology through which consumers access and use over-the-air broadcast signals has evolved consistently since the invention of television and will continue to evolve, the legal principles that guide the analysis are constant,” Aereo said in its motion for summary judgment.
The TV networks have petitioned the full U.S. Court of Appeals in New York to review the decision last month by two of three judges who heard arguments in the case. U.S. Circuit Judge Denny Chin dissented.
“We believe the broadcast networks will prevail and that the courts will ultimately declare Aereo to be a copyright infringer,” Dennis Wharton, a spokesman for the National Association of Broadcasters, said in an e-mail.
Last week Aereo sued CBS to prevent the network from attempting to shut down the service in cities other than New York. Since the appeals court ruling on April 1, Aereo announced plans to expand its service to Boston and Atlanta.
Aereo said that its service gives subscribers access to broadcast programming and lets them record it using remotely located individual antennas and digital video recorders for playback later. The company said its technology can be compared to the rooftop antennas and rabbit ears used to bring over-the-air TV signals into the home for free, and the appeals court agreed.
The service began in March 2012 for residents of New York City. Subscription prices start at $8 a month. Chet Kanojia is the founder and chief executive officer of Aereo.
Before the service began, Aereo received support from Diller’s digital media company IAC/Interactive Corp., which led a $20.5 million round of financing for the startup. Diller, who is on Aereo’s board, once ran News Corp.’s Fox Broadcasting Co.
Other plaintiffs in the Aereo case include News Corp.’s Fox, WNET and the Public Broadcasting Service.
“Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action,” U.S. Circuit Judge Christopher Droney said in the appeals court opinion.
The cases are American Broadcasting Cos. v. Aereo, 1:12-cv-01540, and WNET v. Aereo, 1:12-cv-01543, U.S. District Court, Southern District of New York (Manhattan).