Major league sports banded together to fire off a brief to the Supreme Court complaining that services such as FilmOn and Aereo that use antenna farms to deliver free-to-air broadcast signals to consumer’s broadband and mobile devices are hurting their business.
The National Football League (NFL) and Major League Baseball (MLB) said if the services are made legal, it could mean moving most games to cable-only channels such as ESPN.
“If copyright holders lose their exclusive retransmission licensing rights and the substantial benefits derived from those rights when they place programming on broadcast stations, those stations will become less attractive mediums for distributing copyrighted content,” they wrote to the court. “The option for copyright holders will be to move that content to paid cable networks (such as ESPN and TNT) where Aereo-like services cannot hijack and exploit their programming without authorization.”
Broadcasters tried to get an injunction from the the Second Circuit Court of appeals after it concluded in favor of Aereo in April. Since then, they have been petitioning the Supreme Court.
Now the sports leagues have joined in to say the court’s conclusion that Aereo did not violate copyright laws by not paying retrans fees for TV station signals “judicially empowers Aereo and similar services to destroy marketplace-negotiated exclusivity.”
FilmOn is currently waiting for a decision from the Ninth Circuit Court of Appeals which would open its service up to nine Western states including Arizona, California, and Hawaii.
Both services allow users to watch local over-the-air programming (the kind that could once be picked up by a regular antenna) on the Internet or via set top devices. They do this by using individual antennae to pick up broadcast signals, storing them in the cloud, and delivering them to subscribers via broadband and mobile. FilmOn’s free service also includes hundreds of licensed channels and videos-on-demand. Aereo’s service charges a monthly fee. (TVmix is owned and operated by FilmOn Networks.)
FilmOn has argued that use of the antenna farms does not constitute a public performance and is merely akin to time shifting via a DVR. It has also maintained that no harm is done because the advertisements are delivered intact.
FilmOn owner Alki David told a panel of legal experts at New York Law School in October, “The content that is being distributed on peer-to-peer networks is content that is not freely available to the public, whereas it’s not as if we’re retransmitting or making available DVR boxes with the NFL Network or Discovery… The content that is available through our antennas is freely available already in the air to the public. And that is a huge difference.”
“We are only offering what is freely available,” he went on to say. “You cannot steal something that is free.”
The NFL and MLB are adamant that the services represent a vast threat to their business, saying, “The Court’s intervention is now necessary to restore clarity and certainty in this area and to prevent the unraveling of a marketplace built upon the licensing of rights rather than the expropriation of such rights through technological chicanery.”
But as Lyle Denniston put it in the SCOTUS blog, the broadcasters face an uphill battle: “The broadcasters’ request does face three challenges. First, the court of appeals decided only that the broadcasters were not entitled to a preliminary injunction against the Aereo service. The Supreme Court generally does not enter a case at such an early stage, but it may conclude that this ruling essentially determines Aereo’s legality under the copyright laws. Second, while the broadcasters identify decisions holding that such services violate the Copyright Act, none have been issued by a court of appeals, so that the case lacks the “circuit conflict” that generally drives the Court’s review. Third, other cases on the same question are being litigated in several lower courts, and the Justices may decide the best course is to await one of those.”
Some experts say that the real worry among the sports leagues is that pay cable could use the free-to-air services as an excuse to renegotiate their retrans fees and that the services create no direct threat to their business.
“There are five media companies running the whole US TV business,” David told TV Mix. “The reality is that these broadcasters who were granted their spectrum by Congress have become so powerful that it seems that they have created an extraordinary monopoly beyond the control of the FCC and of the Government itself.”