The online television company Aereo Inc. on May 6 filed a declaratory judgment suit against CBS Broadcasting Inc. and about two dozen CBS affiliates, asking a judge to rule that Aereo’s service doesn’t infringe the defendants’ copyrights. The complaint, filed in U.S. district court in Manhattan, comes less than a week after CBS president Leslie Moonves vowed to keep suing Aereo everywhere it plans to expand. The company says it will launch its network TV streaming and recording service in Boston next week, followed by 21 additional cities beyond its current market in New York.
The start-up, with heavy backing from media mogul Barry Diller, lets subscribers watch local television programs live on their computers or mobile devices or record them for later. Rather than stream the networks’ content directly from a central Aereo antenna, the company packed a warehouse in Brooklyn with thousands of tiny antennas that it assigns to individual customers. The company does not pay retransmission fees for the programming.
Last July Southern District Judge Alison Nathan (See Profile) refused to preliminarily enjoin Aereo’s service, ruling that the networks’ copyright claims were likely to fail. On April 1, the U.S. Court of Appeals for the Second Circuit upheld that decision in a 2-1 ruling (NYLJ, April 2).
The declaratory judgment suit claims that CBS is now threatening to sue Aereo in other jurisdictions, even before Nathan has rendered a final judgment in the New York litigation. "Such threatened follow-on suits would be an attempt to avoid or evade the [district court and Second Circuit rulings] by seeking ‘do-overs’ in other courts," Aereo’s lawyers wrote. "It is not proper for parties to re-litigate claims that are pending, let alone already decided."
Michael Elkin of Winston & Strawn, R. David Hosp of Fish & Richardson and Seth Greenstein of Constantine Cannon are representing Aereo.