Networks’ Win in Signal Fight Challenged by EFF

(CN) - Digital rights advocates urged the 9th Circuit to block Fox and NBC from interfering with the "personal, everyday uses of free television broadcasts."

The amicus brief filed Friday comes in the consolidated appeal from lawsuits Fox Television and NBCUniversal filed against Aereokiller, a service that sends over-the-air television signals to the personal computing devices of its subscribers.

Crediting claims that the Internet video company violates network copyrights, a federal judge in Los Angeles gave the networks a preliminary injunction last month.

The Electronic Frontier Foundation (EFF) says such claims are "baseless."

"In all material respects," Aereokiller's system of antennas, recording and transmission mirrors that of Aereo, a New York video system that the 2nd Circuit found noninfringing in the 2008 decision Cartoon Network LP v. CSC Holdings Inc., the EFF argued.

Upholding the injunction will create a circuit split, the group argued.

"The underlying issue raised here is whether copyright holders should be permitted to reach beyond their statutory rights to prohibit follow-on innovation, and to regulate personal, everyday uses of free television broadcasts," its 30-page brief states. "Also at stake is whether preliminary injunction decisions in copyright cases can be premised on unsupported assumptions favoring copyright holders, contrary to the public interest and the Supreme Court's instructions in EBay Inc. v. MercExchange LLC. These issues are of profound importance to the public."

EFF also likened Aereokiller to roof-mounted antennas, long-used for private television transmissions.

"The technologies that enable these forms of private viewing are, to the viewer, part of the personal equipment that was once limited to a console television with cumbersome 'rabbit ears,'" the brief states. "In each of these activities, the source of the programming is over-the-air broadcast, which anyone within range has a right to receive on the personal equipment of their choice."

The author of the brief, EFF staff attorney Mitch Stoltz, said in a statement that the networks are "twisting the law" at viewers' expense.

"Many of the services that Hollywood is trying to shut down are simply conceptually moving the antenna that used to be on your roof to their roof," Stoltz said. "TV viewers have a right to choose when and how they watch free TV - and courts have recognized that. Networks can't block consumer choices just because they didn't think of it first and want a cut of the profits from someone else's idea."

The EFF further argued that start-up innovators and others enter the market without consistent rulings supporting TV viewers' legal and customary rights.

"This isn't just about the products and services that are being developed today," Stoltz added. "It's about what innovators could come up with tomorrow, if they aren't discouraged by TV networks trying to claim copyright infringement when it just doesn't apply. We're asking the court here to prevent Hollywood from twisting the law at the expense of viewers' customary rights."

The Electronic Frontier Foundation, a member-supported nonprofit founded in 1990, says it "promotes the sound development of copyright law as a balanced legal regime that fosters creativity, innovation, and the spread of knowledge."

The brief argues that "there is a significant public benefit of increased competition in video distribution."

"In considering whether to uphold the grant of preliminary injunction, the Court should keep in mind the ultimate purpose of copyright - to promote progress - and avoid shortcuts or presumptions that will create a disincentive for future innovators," the group added.

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