Digital Rights Groups Defend Antenna-Based Internet TV Service

Tens of thousands of these tiny antennas are housed in a Brooklyn data center. They capture over-the-air TV broadcasts, which are then streamed over the internet to Aereo customers in New York. Photo: Aereo

Two digital rights groups urged a federal court Wednesday not to shut down an upstart technology company that streams over-the-air broadcasts to New Yorkers.

Public Knowledge and the Electronic Frontier Foundation, in a friend-of-the-court brief, said the courts should not shutter Aereo, as broadcasters are asking, simply because there is no federal licensing scheme yet for internet streaming of over-the-air broadcasts (one exists for cable companies).

Aereo’s New York customers basically rent two tiny antennas, each about the size of a dime. Tens of thousands of the antennas are housed in a Brooklyn data center. One antenna — unique to a customer — is used when a customer wants to watch a program in real time from a computer, tablet or mobile phone. The other works with a DVR service to record programs for later online viewing.

Aereo, which offers the service free but plans to charge about $12 monthly, does not divulge the number of its customers.

The broadcasters said Aereo is practicing “technological gimmickry” to skirt paying them licensing fees. Aereo’s business model, they said, “usurps their right to decide how and on what terms to make available and license content over new internet distribution media.”

But just because there’s no licensing mechanism doesn’t mean the unique service Aereo offers amounts to copyright infringement, the rights groups countered.

“Plaintiffs list particular examples of harms allegedly brought about by Aereo’s conduct, and claim them as being irreparable and substantial. However, the only cognizable harms amount to Aereo’s failing to pay licensing fees plaintiffs presume that they are entitled to,” the groups wrote the New York judge presiding over the case.

Shuttering the service, which the groups contend does not infringe the copyrights of ABC, CBS, NBC, Fox and other local broadcasters, “would deny to the public the benefit of advances in technology, contrary to the purpose of the Copyright Act.”

A hearing on whether the upstart, backed by financier Barry Diller, should be shut down is set to be heard in a New York federal courtroom next week.

In our earlier analysis of the case, we noted that, if Aereo were a cable or satellite company, it could transmit publicly available broadcast signals to its customers — under a complicated licensing-fee structure. Copyright holders in the programs being re-broadcasted have no say in the matter, under what is known as compulsory licensing. Congress adopted the licensing structure for cable and satellite following Supreme Court decisions in the ’60s and ’70s that allowed cable companies to hijack over-the-air broadcasts and include them in their primitive television packages.

And herein lies a 21st Century anomaly: The federally mandated licensing structure put into place is silent when it comes to internet streaming of over-the-air broadcasts that are carried over public airwaves. That’s why Aereo claims that, because of its proprietary technology that captures broadcasts and streams them to paying customers, it doesn’t need anyone’s permission to supply freely available television signals.