Aereo Lawyers: We’re A Cable Company Now

In a letter to a District judge on Wednesday, lawyers for Aereo signaled a shift for the television streaming company whose business was halted in late June following a Supreme Court decision.

Aereo’s lawyers are now implying the company — which transmitted television broadcasts directly to users via the Internet — is a cable system and not a technology service provider as the Second Circuit court found. Because of this, the lawyers say they are entitled to a compulsory license under Section 111 of the Copyright Act and should be allowed to continue operating.

“Under the Second Circuit’s precedents, Aereo was a provider of technology and equipment with respect to the near-live transmissions at issue in the preliminary injunction appeal. After the Supreme Court decision, Aereo is a cable company with respect to those transmissions,” the lawyers write in a letter published by the Hollywood Reporter.

They continue, “If Aereo is a ‘cable system’ as that term is defined in the Copyright Act, it is eligible for a statutory license, and its transmissions may not be enjoined (preliminarily or otherwise).”

Following the Supreme Court decision, which found the company violated copyright law and should be required to follow the same rules as cable and satellite companies, the start-up halted business. Lawyers also say that, given the Supreme Court’s 6-3 ruling, any potential legal action against their operations should be limited to the “simultaneous or near-simultaneous streaming of over-the-air television programs.”

Broadcasters argue, however, that Aereo’s arguments are invalid.

“Aereo never before pled (much less litigated) Section 111 as an affirmative defense,” the plaintiff’s lawyers wrote. “Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a ‘cable system’ under Section 111 given its prior statements to this Court and the Supreme Court.”