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Networks Defend Probe Into Aereo’s Google Plan

(CN) - TV networks say Google's marketing data could support their claims that the Internet broadcasting service Aereo sought to infringe on their copyrights.

On March 1, 2012, several major networks, including ABC, CBS and NBC, sued Aereo in the Southern District of New York, claiming that the company infringed on their broadcasts by transmitting them to subscribers.

Months later, a federal judge refused to cut off Aereo's feed and said the networks would not likely win their infringement claims. An appeal of that decision is pending in the 2nd Circuit.

Meanwhile, the networks subpoenaed Google in the Northern District of California, which holds jurisdiction over the Silicon Valley-based search engine.

Aereo opposed those requests in a motion to quash, but the networks insist that Aereo's Google AdWord campaign will belie its representations to the court.

"Because commercial services which retransmit over-the-air broadcasts must have a license, Aereo has attempted to distinguish what it does from television service providers such as cable and satellite companies, which have licenses to retransmit Plaintiffs' programming," according to the Aereo brief authored by Jenner & Block attorney Julie Shepard. "Indeed, Aereo takes great pains to portray itself as 'just a technology company' that 'rents' equipment to subscribers. But this is all fiction. Aereo takes Plaintiffs' broadcast signals, manipulates them for retransmission over the Internet, and retransmits them to Aereo's subscribers for a fee."

The networks contend that Aereo billed itself to search engine users as an alternative to cable and satellite services.

"Consumer behavior and response are critical considerations when a fair use defense is asserted," Shepard wrote. "These documents will also show how Aereo has marketed its service and are different from those documents Aereo itself will have in its possession. Google's reports on traffic sources will likewise help Plaintiffs understand which websites deliver traffic to the Aereo website, and what types of searches users run to get there. And, as discussed above, the Google reports will provide aggregated data about access to Aereo web pages by Aereo users from outside the New York metropolitan viewing area. All of this information reflects the way Aereo presents its service to the public and how consumers respond."

A protective order in place in New York will ensure that none of the requested records from Google expose Aereo's confidential business information to the public, the networks say.

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