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Briefs Filed for Aereo’s Supreme Court Battle

(CN) - The U.S. Supreme Court should protect Americans' ability to choose how and when they watch television programming when they consider the networks' case against Internet streaming service Aereo, a new amicus brief states.

A service backed by IAC's Barry Diller, Aereo allows paid subscribers to access network programming by renting access to one of thousands of dime-sized antennae.

Aereo maintains that copyright law is on its side, but major broadcast networks like ABC and Fox claimed otherwise when the service debuted in major cities in 2012.

The business contends it is offering subscribers something like traditional rabbit ears that allow television viewers to watch network content "privately."

The Supreme Court is poised to rule on the issue this term after a divided three-judge panel of the 2nd Circuit rejected the networks' copyright claims against Aereo.

In a Wednesday amicus brief, the Electronic Frontier Foundation and three other groups urged the justices to affirm.

"Instead of attempting to rebalance the various interests raised here based on a slim factual record and litigants' opinions of what constitutes 'real' or 'sham' innovation, this court should decline the copyright expansion the broadcasters seek, and allow Congress to address the matter, if it so chooses," the brief states (emphasis in original).

EFF Attorney Mitch Stoltz said in a statement that the argument by the networks stretches congressional intent.

"The networks' interpretation of the law would strip away the commercial freedom that led to the home stereo, the VCR, all manner of personal audio and video technology and to Internet services of many kinds," Stoltz said in a statement.

Aside from its 2nd Circuit victory, Aereo has had mixed results in the lawsuits it faces across the country.

Challenging those adverse findings, the foundation said the streaming service does not create "public performances" under the transmit clause of the U.S. Copyright Act.

Instead, Aereo allows access to "private, personal transmissions" that do not infringe on the networks' copyrighted works, according to the brief.

When Congress crafted the Copyright Act in 1976, lawmakers "did not foresee that TV viewers would be able to transmit signals over a communications medium like the Internet for their own personal use," the brief states.

Public Knowledge, the Consumer Electronics Association and Engine Advocacy all co-signed the brief.

"Nor did Congress foresee a means of transmitting video that was not a dedicated video distribution system regulated by the Federal Communications Commission," the 30-page filing adds.

As well as protecting the rights of broadcasters to license their content, Congress wrote the transmit clause to give new technologies wiggle room "while reserving many uses of creative work to the public," the brief states.

A high court ruling in favor of the networks "would strip away the commercial freedom that led to the home stereo, the videocassette recorder, all manner of personal audio and video technologies, and many Internet-based services," the groups contend.

Aereo filed its brief last week, while the networks filed their brief a month earlier.

The EFF amicus brief joins a host of others filed by Computer & Communications Industry Association, Mozilla, and the Small and Independent Broadcasters.

Among those in the networks' corner are Cablevision, the NFL and the United States.

A federal judge in Washington, D.C., issued a nationwide injunction last year against Aereo's competitor Film On X, barring it from streaming live TV show with a similar mini-antenna technology.

Around that time, a New York federal judge found that Film On X violated a settlement and court injunction by streaming the networks' programs.

Last month, the Supreme Court refused to let Film On X intervene in the final leg of Aereo's New York battle.

In addition to its New York case, Aereo found victory in Boston when a judge refused to enjoin its streaming of ABC affiliate WCVB-TV programming.

Last month, however, the 10th Circuit upheld a Utah federal judge's six-state ban on the streaming service.

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