Late last month, 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 U.S. District Court Judge Rosemary Collyer issued, blocking it from operating. Last month, Aereo asked for permission to file an amicus brief urging the appeals court to overturn the injunction (Aereo had filed an amicus brief with the D.C. Circuit Court of Appeals). Last week, lawyers representing ABC/Disney, Fox, NBC, CBS, Allbritton and others asked the court to deny that filing. Now, Aereo has responded, saying it has “a direct interest in the issues to be decided in this case,” and that its proposed amicus brief “presented arguments and perspectives that would be helpful and relevant to the court in this appeal.”
Aereo, like FilmOn X, uses thousands of tiny antennas to capture broadcast TV and stream shows to users. Both companies say that their streams are “private,” because they’re made on an antenna-to-user basis.
“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 their recent 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.”
RBR-TVBR observation: Aereo knows that a ruling against FilmOn X that could set a precedent against its own cases—including the possible Supreme Court cert. As well, 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. So far, Aereo has prevailed in an appellate court in New York and a trial court in Boston. But TV broadcasters have obtained injunctions against FilmOn X in California and DC.
