M+E Daily

The Barry Diller-backed broadcast TV streaming service Aereo got a nice write up in the New York Times this morning, which credited Aereo with walking a “fine legal line” between providing consumers with the tools to time-shift and place-shift local broadcast signals, and copyright infringement. But the broadcasters whose signals are being place-shifted think Aereo has actually erased that line, and on Friday PBS, Fox and Univision filed a brief with the federal Second Circuit Court of Appeals in New York asking it to overturn a lower court ruling in July that found Aereo to be on the straight and narrow.

The brief was not immediately available (ABC, CBS and NBC are pursuing a separate appeal). But based on excerpts reported by Variety, the broadcasters’ go right to the heart of the matter:

“The district court here reached a contrary conclusion regarding Aereo based primarily on the fact that, just prior to retransmitting a show to subscribers, Aereo first makes a unique copy of at least several seconds of that show for each subscriber and then transmits to its many subscribers from those unique copies,” the broadcasters’ brief stated.

“According to the district court, by interposing these intermediate copies in its chain of retransmission, Aereo makes ‘private’ what otherwise indisputably would have been public performances requiring a license. That reasoning, however, ignores the statute, which by its terms requires the aggregation of individual transmissions to particular recipients, ‘whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times.'”

The distinction between private and public performances is critical to the broadcasters’ case — and to their future business model. The district court’s ruling was based on the Second Circuit’s own opinion in the case brought by many of the same broadcasters in 2006 against Cablevision over its cloud-based DVR service.

In that case, the Second Circuit held that the streamed transmissions Cablevision subscribers made to themselves from recordings created and stored on the cable operator’s servers were not a public performance of the works, which would require a license, but a private performance accessible only to the individual subscriber, which do not.

Aereo was clearly engineered (and launched within the Second Circuit’s jurisdiction) to conform with both the technical and legal architecture of Cablevision’s cloud-DVR, which led the district court to conclude that Aereo’s streams likewise comprise private performances and do not require a license.

If the Aereo case results in another appellate court ruling that all a service provider needs to do is bounce a TV signal momentarily off a cloud-based DVR to transform “what otherwise indisputably would have been public performances requiring a license,” into something private that does not, it could open the door to a host of new services offering all sorts of new ways to use and consume TV transmissions without the consent of the network or the content owner.

That would obviously be a very problematic outcome for the networks and network programmers, which makes the stakes in the Aereo case extremely high.