Obama Administration Backs TV Giants’ Bid to Kill Aereo

The solicitor general says the video site is stealing content.

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National Journal
Brendan Sasso
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Brendan Sasso
March 3, 2014, 1:23 p.m.

The Obama ad­min­is­tra­tion has sided with tele­vi­sion broad­casters in their bid to shut down video-stream­ing site Aereo.

In a brief to the Su­preme Court, the U.S. So­li­cit­or Gen­er­al’s Of­fice said that Aereo’s “un­au­thor­ized In­ter­net re­trans­mis­sions” vi­ol­ate copy­right law.

The fil­ing is a ma­jor blow to Aereo, which al­lows cus­tom­ers to watch and re­cord broad­cast TV on their com­puters, mo­bile devices, or In­ter­net-con­nec­ted TVs for a monthly fee. The Su­preme Court is sched­uled to hear or­al ar­gu­ments in the case on April 22.

Un­like cable and satel­lite pro­viders, Aereo doesn’t pay the TV net­works for their con­tent. The com­pany uses tiny an­ten­nas to pick up over-the-air TV sig­nals and trans­mits that video to its cus­tom­ers over the In­ter­net.

ABC, NBC, CBS, Fox, and oth­er broad­casters claim Aereo is steal­ing their con­tent, while the video site says it is only mak­ing it easi­er for con­sumers to ac­cess free TV chan­nels.

The Obama ad­min­is­tra­tion con­cluded that Aereo’s ser­vice is an “in­teg­rated sys­tem” that is steal­ing the copy­righted con­tent.

“The fact that as part of that sys­tem [Aereo] uses unique cop­ies and many in­di­vidu­al trans­mis­sions does not al­ter the con­clu­sion that it is re­trans­mit­ting broad­cast con­tent ‘to the pub­lic,’ ” the So­li­cit­or Gen­er­al’s Of­fice wrote. “Like its com­pet­it­ors, [Aereo] there­fore must ob­tain li­censes to per­form the copy­righted con­tent on which its busi­ness re­lies.”

The of­fice re­jec­ted Aereo’s ar­gu­ment that sid­ing with the broad­casters would en­danger the leg­al­ity of cloud com­put­ing and oth­er tech­niques for ac­cess­ing copy­righted con­tent re­motely.

“A con­sumer’s play­back of her own law­fully ac­quired copy of a copy­righted work to her­self will or­din­ar­ily be a non-in­fringing private per­form­ance, and it may be pro­tec­ted by fair-use prin­ciples as well,” the gov­ern­ment wrote. Aereo cus­tom­ers, by con­trast, have no right to ob­tain the TV con­tent through the ser­vice, ac­cord­ing to the fil­ing.

The So­li­cit­or Gen­er­al said the con­clu­sion that Aereo is il­leg­al “should not call in­to ques­tion the le­git­im­acy of busi­nesses that use the In­ter­net to provide new ways for con­sumers to store, hear, and view their own law­fully ac­quired cop­ies of copy­righted works.”

The U.S. Court of Ap­peals for the 2nd Cir­cuit sided with Aereo last year, and an­oth­er fed­er­al judge in Bo­ston also de­clined to shut down the com­pany. But a fed­er­al judge in Utah sided with the broad­casters this year.

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