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Cyrus Farivar - Oct 11, 2013 10:07 pm UTC

Still unsatisfied with losing at the Second Circuit Court of Appeals (and other lower courts as well), a group of major TV stations and film studios has decided to take its case to the highest court in the land. In a 209-page filing, ABC, Disney, CBS, NBC, and several others are asking the Supreme Court to take up their case against Aereo, the online TV startup.

"The question presented is: Whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet," write the petitioners.

Like their previous arguments before other courts—including a case tossed out earlier this week by a federal court in Boston —the plaintiffs are relying on an argument that describes Aereo’s entire business model as one predicated on theft. Aereo, in contrast, says that just because it is employing thousands of tiny antennas, what it is doing—creating a de facto DVR—is perfectly legal. The Court of Appeals for the Second Circuit has sided with Aereo on the issue, and the petitioners think that the appellate court got it all wrong:

The Second Circuit’s decision is already transforming the industry and threatening the very fundamentals of broadcast television. Broadcasters rely on the revenues they receive from the cable and satellite companies that retransmit their signals to recoup their substantial investments in programming, to fund new shows, and to develop new delivery platforms. They and others also have made substantial investments in developing legitimate Internet-based services, such as Hulu, that obtain copyright licenses for the content made available to subscribers.

Unsurprisingly, Aereo, which pays nothing for the content it retransmits and promotes itself as an alternative to cable and satellite retransmission services, has begun to attract subscribers with its low fees. Certain cable and satellite companies have responded by threatening to use the decision below as a road map for reengineering their own delivery systems so they too can retransmit broadcast signals without obtaining the broadcasters’ permission. And copycat services have sprung up that, like Aereo, transmit live broadcast television over the Internet without obtaining permission or paying compensation.

The decision below has far-reaching adverse consequences for the broadcast television industry, making the need for this Court’s review urgent and acute. The decision already is having a transformative effect on the industry. Industry participants will not and cannot afford to wait for something of this magnitude to percolate before responding to new business realities. And once Aereo’s technology is entrenched and the industry has restructured itself in response, a ruling by this Court in Petitioners’ favor will come too late. The disruption threatened by Aereo will produce changes that will be difficult, if not impossible, to reverse.

The Supreme Court, which only agrees to hear a tiny portion of cases that are appealed to its level, is not likely to decide whether to hear the case for many more months.

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