New York - The Electronic Frontier Foundation (EFF) urged a federal appeals court Friday not to shut down Aereo, a startup that lets customers send local broadcast television to Internet-connected devices, arguing that consumers have the right to watch free broadcast TV with the technology of their choice.

Broadcasters and TV networks – including ABC, Fox, Univision, Disney, CBS, NBC, and PBS – sued Aereo for copyright infringement in March, claiming that Aereo should be paying them license fees. The trial court declined to shut Aereo down during the lawsuit, and the broadcasters appealed. Now, the appeals court will decide whether Aereo can stay open while the case goes forward. EFF, along with Public Knowledge and the Consumer Electronics Association (CEA), filed a friend of the court brief Friday, asking the appeals court to reject the networks' bogus copyright claims and protect the rights of consumers.

"Just because Aereo's system sends TV signals to customers doesn't mean that Aereo needs permission from the broadcasters," said EFF Staff Attorney Mitch Stoltz. "Personal TV transmissions don't violate copyright – it's a private use that copyright law doesn't reach. This is just a craven attempt by TV executives to profit from technology that they didn't think of first."

Aereo's system works with thousands of dime-sized antennas installed on a Brooklyn rooftop. Each customer is assigned a single antenna that he or she can control, and the signal from that antenna travels over the Internet to the customer's devices. Aereo has explained in court that it simply takes the place of "rabbit ears" or a rooftop antenna, but the networks argued that Aereo should be treated like a cable system that must get permission from and pay fees to broadcasters.

In deciding not to shut Aereo down pending trial, Judge Alison Nathan of the Southern District of New York said that Aereo's system was similar to another technology that survived a court challenge: Cablevision's "remote DVR" system, which in 2008 was found not to infringe copyright law. Like Aereo, Cablevision took equipment that customers traditionally put in their homes – in that case, digital video recorders – and moved them to the company's offices. Judge Nathan ruled that the appeals court's decision in the Cablevision case also applied to Aereo.

"Broadcasters have exclusive use of a scarce public resource – the airwaves – and that privilege carries with it a responsibility to serve the public. Obviously, the public benefits by having alternative ways to enjoy TV content," said EFF Intellectual Property Director Corynne McSherry. "Judge Nathan reached the right result and we hope the appeals court does too."

EFF co-wrote its brief with John Bergmayer and Sherwin Siy of Public Knowledge.

For the full amicus brief in WNET v. Aereo:


Rebecca Jeschke
   Media Relations Director
   Electronic Frontier Foundation

Mitch Stoltz
   Staff Attorney
   Electronic Frontier Foundation