TV broadcasters asked a federal appeals court in DC to keep Aereo out of an appeal involving copycat broadcast streaming provider FilmOn X. FilmOn X appealed a preliminary injunction a lower court issued, blocking it from operating. Last month, Aereo asked for permission to file an amicus brief urging the appeals court to overturn the injunction. Last week, lawyers representing ABC/Disney, Fox, NBC, CBS, Allbritton and others asked the court to deny that motion.
“Aereo’s proposed amicus brief ‘essentially duplicates’ Appellants brief, offering nothing more than ‘a few additional citations not found in the parties brief and slightly more analysis on some points,'” the broadcasters said in the filing.
More from the filing:
“Aereo’s motion should be denied for the simple reason that its proposed amicus brief does not present any perspective not already found in, and essentially duplicates, Appellants’ brief. Aereo is itself a defendant in copyright cases involving the same plaintiffs and issues. Its proposed brief is simply an effort to circumvent Appellants’ page limits. Accordingly, the motion fails to establish that the proposed brief is “desirable” and that “the matters asserted are relevant to the disposition of the case.”
Defendants-Appellants appeal from a preliminary injunction that enjoins them from retransmitting over the Internet Plaintiffs-Appellees’ copyrighted over-the-air television programming. The preliminary injunction was sought and granted on the basis that Appellees were likely to succeed in showing that Appellants infringed Appellees’ exclusive public performance rights under the Copyright Act, 17 U.S.C. § 106(4), as further defined by the Transmit Clause, 17 U.S.C. § 101, and that the other requirements for preliminary injunctive relief were met.
Like the Defendants-Appellants, Aereo is a commercial service that retransmits over the Internet Appellees’ free over-the-air broadcast television programming to Aereo subscribers.
Indeed, Appellants claim that their service is just like Aereo’s. Moreover, and again like the Defendants-Appellants, Aereo is the defendant in separate lawsuits and appeals litigating the same issues as Appellants here.
Under these circumstances, it is not surprising that Aereo’s interests in a particular construction of the Copyright Act’s public performance right, including the Transmit Clause as it pertains to retransmission of over-the-air broadcast television programming, are indistinguishable from Appellants’ interests.
A cursory review of Aereo’s amicus brief makes clear that Aereo advances the identical arguments regarding the matters at issue on this appeal as Appellants make in their opening brief. Aereo makes clear that it intends to make the same arguments as Appellants in defending the Second Circuit’s interpretation of the Transmit Clause, as set forth in Cartoon Network LP v. CSC Holding, Inc., 536 F.3d 121 (2d. Cir. 2008) (“Cablevision”), and the subsequent application of Cablevision in the Aereo Litigation. See Proposed Amicus Brief at 4 (“Aereo files this amicus brief because of the district court’s disagreement with…Cablevision[.]”).
RBR-TVBR observation: Broadcasters are smart in asking the court to keep them separate. Aereo has had a better track record thus far in the courts. Broadcasters are looking for any ruling against either Aereo or FilmOn X that could set a precedent against the other case. Keeping Aereo’s amicus brief out of the FilmOn X case is highly recommended because if allowed, Aereo could potentially be called to the trial for oral arguments.
