Aereo Seeks Summary Judgment
Aereo filed a motion for summary judgment in the case against it by several major broadcast networks over its online TV service. Aereo said Tuesday that all of the issues in the case were already decided in the company’s favor during failed preliminary attempts by broadcasters to get an injunction in lower court and again in the 2nd U.S. Circuit Court of Appeals. Both courts ruled that Aereo’s system of tiny, individualized antennas doesn’t infringe on broadcasters’ copyrights. “Because that reasoning applies with equal force at this stage, Aereo is entitled to summary judgment,” said the motion.
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If granted, Aereo’s motion could end the case against it in the U.S. District Court in New York, said Fletcher Heald TV-station lawyer Harry Cole, not involved in the litigation. Because of the extended appellate battle over the preliminary injunction, the overarching case has been on hold, and is awaiting a decision from the 2nd Circuit on whether the full court will rehear the case. The granting of Aereo’s motion could make that en banc appeal a moot process, Cole told us.
However, such a ruling would likely not end Aereo’s court struggles, based on CBS’s previous comments. The streaming company rolled out its services to pre-registered subscribers in Boston Wednesday, and will be available to any subscriber there by the end of the month. CBS has said it will take Aereo to court in every jurisdiction where Aereo rebroadcasts the network’s content. Earlier this month, Aereo asked for a declaratory judgment in federal court in New York to prevent lawsuits in other jurisdictions (CD May 8 p10), and on its website the company has announced plans to bring its service to numerous U.S. cities.
"It’s exciting to be getting started in Boston and we'll do the same in Atlanta starting on June 17,” said an Aereo spokeswoman. Broadcasters plan to continue their case, a Fox spokesman said of the appeal to the full 2nd Circuit. “While the court declined to issue an injunction in the very early stages of the case, we are confident that the ultimate outcome, whether by motion or trial, will reject Aereo’s signal stealing scheme."
Broadcast lawyers said Aereo’s motion could go either way. Pillsbury Winthrop’s John Hane said he disagrees with the 2nd Circuit’s decision on the case, but the prior decisions in Aereo’s favor put it “in a pretty good position” for the summary judgment ruling the company seeks. Contrary to Aereo’s argument, Hane said he doesn’t believe all the facts in the case have been decided in the prior proceedings. Cole said broadcasters will respond to the motion by trying to “convince the court that there are factual issues that need to be tried.” Hane said Aereo’s strategy behind the motion is to get “as many favorable decisions as it can” in the same district and circuit that have ruled in its favor in the past “so it can wave those around in other courts.” Hane said the New York decisions won’t be binding in other courts, “but Aereo knows it isn’t likely to have such a favorable forum again, so it wants to get as much out of the present case as fast as it can.”