Fox and other broadcasters have asked for en banc (full
court) re-hearing by the Second Circuit federal appeals court of the decision
by a three-judge panel of that court not to prevent Aereo from streaming TV
station signals while a district court weighs the broadcasters' challenge to
that service.
In the petition for a full hearing -- the decision by the
three-judge panel was 2-1 -- Fox, WPIX, WNET, Univision and PBS said that the
decision to deny the injunction "guts" a 1976 decision by Congress to
treat all services that retransmit broadcast programming to the public as being
engaged in "public performances" and "thus needed a license from
the copyright holder," which Aereo does not have.
"Unless reversed," they argue, "the decision
will wreak commercial havoc by allowing new and existing distributors to design
around this license requirement and profit from the delivery of copyrighted
programming while paying nothing for it."
They say unless the full court overrules the panel, the
ruling will have created a loophole that will "swallow" the entire
retransmission consent regime.
Broadcasters have been increasingly relying on retrans
payments as a needed additional revenue stream in competition to a host of new
video distribution outlets.
Fox said that Time Warner Cable and Dish are already
threatening to partner with Aereo or copy the model. Aereo says it is simply
providing remote access to antennas and the free over-the-air signals their
subs are entitled to.
Fox also raises the specter once again of being "forced
to consider converting their broadcast networks to subscription-based cable
channels."
Inan April 1 decision, which was no joke to broadcasters, the three-judge
panel upheld a District Court denial of an injunction filed by broadcasters
seeking to stop the company from streaming TV station signals to subscribers
without permission or payment. The District court has yet to rule on the
underlying broadcaster challenge, but the denial of the injunction means Aereo
can continue to stream the signals. It also means that if the broadcasters were
to lose in the district court, they would face an uphill battle on appeal, at
least on the copyright argument.
In rejecting that injunction, the court also
signaled it did not accept broadcasters' arguments that the service violated
copyright law. "We conclude that Aereo's transmissions of unique copies of
broadcast television programs created at its users' requests and transmitted
while the programs are still airing on broadcast television are not 'public
performances' of the Plaintiffs' copyrighted works under Cablevision," the
court said. "As such, Plaintiffs have not demonstrated that they are
likely to prevail on the merits on this claim in their copyright infringement
action."
