Consumers Union, Others Defend Aereo Against Injunction Appeal

Copyright law should not be used to restrict consumer choice, the Consumers Union and Consumer Federation of America said jointly. “Attempts to employ copyright to suppress new information technologies are nothing new.” But courts and the Congress have a history of siding with consumers on such issues, the brief said. Similarly, the 2nd Circuit should reject the broadcasters’ arguments to restrict its holdings in the Cablevision decision to the circumstances of that case, it said. “In Cablevision this Court recognized Congress’s intention to authorize technologies like Cablevision’s, which do not infringe on copyright owners’ rights of public performance,” it said. “Aereo is another such technology and it falls within the clear congressional intent to enable greater consumer access to protected content within the private sphere."

The Electronic Frontier Foundation (EFF), Public Knowledge and CEA also backed Aereo. Together, they argued that Aereo should not be punished for following the law. “Aereo followed the guidance of this Court as to the definition of a private performance and designed a system that enables its customers to experience private performances of programs those customers may already lawfully access,” their brief said. “Aereo has built a business in the wide-open realm that Congress reserved to the public, not the well-defined reservation set aside as reward and incentive for authors."

The court should ignore arguments that Aereo’s service could harm broadcasters and programming networks commercially, Public Knowledge, EFF and CEA wrote. “Plaintiffs have no right to block, control or profit from private performances, including private performances of a commercial nature,” their brief said. “Preliminary injunctions in copyright cases should discourage infringement but not innovation."

The Computer and Communications Industry Association and the Internet Association also filed a brief in support of Aereo. They argued the entire cloud computing industry, which developed in the wake of the Cablevision decision, could be put at risk by adopting the broadcasters’ theory of restricting the Cablevision decision to the facts of that case alone. “It is not exaggeration to say that the proper interpretation and application of Cablevision is critical to the future of the Internet,” they wrote. “A great deal hangs on a consistent, principled judicial interpretation of [the term] ’to the public,’ [in the Copyright Act], as it marks the boundary between public an private performances on the Internet.” Appellants’ arguments are “better addressed to Congress than to this Court,” they wrote. That branch of government is best equipped to give the industry-specific, technology-specific protection they seek, the brief said. “Only Congress has the flexibility to amend the Copyright Act to address the interests of Appellants without creating collateral uncertainty regarding the meaning of ’to the public’ for Internet innovators and investors."

A group of nearly three dozen copyright law professors urged the court not to depart from precedent of interpreting the Copyright Act to strike a balance between copyright owners and technology innovators. “When the statute is silent or ambiguous on new the copyright implications of a new technology … the court’s role in construing the statute is not to produce maximum authorial reward but maximum public benefit,” the brief said. “Copyright owners who must persuade Congress to address the matter and adjust the balance so that it tips in their favor … are entitled and well-equipped to do that, as they have done so often in the past.”