• by Wendy Davis  @wendyndavis, April 16, 2013

A coalition of TV networks are asking a federal appeals court in New York to reconsider a ruling that allowed online video company Aereo to continue rolling out its cord-cutting service.

The pro-Aereo ruling, issued earlier this month by a three-judge panel, “threatens the over-the-air broadcasting industry,” the TV networks say in new court papers. The broadcasters are asking the entire 2nd Circuit Court of Appeals to rehear the case.

Aereo allows people to view live streams of over-the-air TV shows on iPhones, iPads and other devices. The service also allows people to “record” over-the-air shows for later viewing.

The TV networks are suing Aereo for copyright infringement. The networks say that Aereo is operating like a cable television company, and is illegally transmitting TV shows without a license. The TV broadcasters say that the transmissions are a “public performance,” which requires a license.

Two weeks ago, a panel of the 2nd Circuit ruled 2-1 that Aereo's transmissions are not public performances. That ruling upheld a trial judge's decision denying the TV networks' request for an injunction banning Aereo from operating.

In the last week, several network executives publicly criticized the decision. News Corp. executive Chase Carey went so far as to threaten to move Fox to cable television, unless Aereo is shut down by the courts or Congress.

The two judges who ruled in favor of Aereo said the company's technology complies with the requirements of copyright law. Before launching in New York last year, Aereo installed thousands of dime-sized antennas in a building in Brooklyn. Those antennas capture over-the-air shows, which are then streamed live to paying subscribers. Consumers can also direct Aereo to record the streams for later viewing.

The judges in the majority agreed with Aereo's argument that it has the same right to install antennas that receive over-the-air TV as any individual, and that the streams are legal because they're made on an antenna-to-user basis. The majority found that Aereo's technology complies with a 2008 2nd Circuit ruling in a lawsuit involving Cablevision's remote DVR service. In that case, the ruled that Cablevision's DVR -- which transmits programs to individual households on a DVR-to-user basis -- doesn't infringe copyright.

U.S. Circuit Court Judge Denny Chin dissented from that ruling. Chin called Aereo's technology platform “a sham,” and characterized it as “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”

The TV networks now argue that Chin was correct. The networks say that Aereo's transmissions to subscribers “should have been aggregated,” instead of considered as individual, private performances. “Aereo sends the identical broadcast program to thousands of its subscribers at the same time,” the networks argue.

The broadcasters also point out that a judge in California recently found that Aereokiller -- an online video service that uses the same technology as Aereo -- appears to violate copyright law.

On Tuesday, a coalition including movie studios, Screen Actors Guild and Writers Guild of America, West, asked to file a friend-of-the-court brief in support of the television networks. Their proposed brief argues that Aereo's streams infringe copyright.

“It is undisputed that Aereo re-transmits through Internet streams to thousands of paying subscribers content as it is broadcast over the air. The law is clear that re-transmitting broadcast signals through internet streams is a public performance, which requires a negotiated license,” they write.

The groups say that they are seeking to weigh in because their members depend on licensing revenue, including “residuals and royalties ... as works are released in different media.”