Aereo makes ‘we’re a cable company’ pitch to lower court

Aereo CEO Chet Kanojia (left) left the US Supreme Court after oral arguments in the spring. (LEX WONG/GETTY IMAGES)
Aereo CEO Chet Kanojia (left) left the US Supreme Court after oral arguments in the spring. (LEX WONG/GETTY IMAGES)

After another setback a week ago in an appeals court, streaming TV startup Aereo today renewed its effort to stay in business—by arguing it should be licensed as a cable provider—in a district court.

It’s the backup option for Aereo, which hopes to re-launch the live-TV-on-the-Web service that the US Supreme Court outlawed in June.

As Brian Fung reported for the Washington Post a week ago, Aereo has been told “that if it wants to argue that it’s a cable company only for the purposes of copyright law — and therefore [is] qualified to pay lower royalties — [it was] making the argument to the wrong people” by making its case in an appeals court:

“Technically, Aereo could stick it out for a trial,” said John Bergmayer, an attorney at the consumer advocacy group Public Knowledge. “The case will still be open at the district court. They could still argue there, which they still have the right to do.”

And so Aereo is doing just that, today making its filing with the US District Court for the Southern District of New York.

In the filing, Aereo suggests it may be willing to drop its demands for offering live broadcast TV if it’s at least allowed to resume offering its Web-based DVR service.

“Cablevision remains the law in this Circuit and Aereo’s time-shifted DVR is functionally identical to the Cablevision system,” the filing reads. “As a result, even if this Court finds that Plaintiffs are likely to succeed on the merits on simultaneous transmissions, any injunction should not reach time-shifted consumer transmissions using Aereo’s cloud DVR technology.”

Aereo, which is headquartered in New York and has its largest office in Boston, had previously offered its live-TV-on-the-Web service in Greater Boston and 10 other US markets.

Kyle Alspach has worked in journalism in Massachusetts since 2005 and was one of the original staff writers at BetaBoston.
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