Following loss before the Supreme Court, Aereo ‘astonishes’ broadcasters with new legal strategy

By Andrew L Deutsch, Marc E Miller and Melissa A Reinckens

Shortly after its highly publicised loss before the US Supreme Court, which appeared to doom its over-the-air television internet streaming business, New York-based Aereo has asserted in federal district court that it is entitled to a compulsory licence to carry over-the-air broadcasts under §111 of the Copyright Act. Such a licence, which is available to cable systems, could be a complete defence to copyright infringement claims by broadcasters. Aereo bases its claim on the Supreme Court’s ruling that the Aereo service is ‘highly similar’ to that of a cable system. 

The Copyright Office has since rejected Aereo’s theory, reaffirming its view that §111 does not apply to internet retransmission services. Nonetheless, Aereo’s strategy presents interesting new issues, which may substantially prolong its litigation and which may mean that the case ultimately returns to the Supreme Court.

Once the Supreme Court granted the broadcasters’ petition for certiorari, the New York federal district court presiding over ABC, Inc et al v Aereo Inc, 12-cv-1540-AJN-HBP, stayed all proceedings until the Supreme Court decided the appeal. It also ordered that after the Supreme Court ruled, the parties must submit a joint letter stating their position on whether the stay should be lifted, and, if so, how discovery should proceed…

Click on the link below to read the rest of the DLA Piper briefing. 

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