Behind Aereo’s Decision to Throw the Long Ball to the U.S. Supreme Court

Aereo’s loose-cannon competitor says a judge who ruled against him “cannot possibly know what she is talking about.”

David Talbotarchive page

December 16, 2013

The future of Internet television is tied in part to the future of startup Aereo, which captures free over-the-air broadcasts on tiny antennas in data centers, then sends the shows over the Internet to individual subscribers for as little as $8 a month. That’s potentially a cable-killing business model.

The broadcast industry has characerized Aereo’s model as an illegal rebroadcast that violates copyright. But Aereo says it simply offers a high-tech antenna, one per customer—just smaller than the one on your roof. It has won every court battle so far and, unfettered by court injunctions, has been rapidly expanding around the country (see “Aereo’s on a Roll”).

Yet late last week, Chet Kanojia, the Aereo CEO, declared in a statement that he welcomed the broadcasters’ appeal to the U.S. Supreme Court, saying: “We want this resolved on the merits rather than a wasteful war of attrition.”

Part of the worry on Aereo’s side is the behavior of a somewhat unpredictable cousin, FilmOn X, based in Beverly Hills. That company says its technology is similar to Aereo’s. But FilmOn X, unlike Aereo, lost a round before a federal judge in the District of Columbia, who found in September that “FilmOn X is in no meaningful way different from cable television companies.”

The judge, Rosemary Collyer, ruled that even if subscribers each get their own tiny data center antenna,

the mini-antennas are networked together so that a single tuner server and router, video encoder, and distribution endpoint can communicate with them all. The television signal is captured by FilmOn X and passes through FilmOn X’s single electronic transmission process of aggregating servers and electronic equipment. This system, through which any member of the public who clicks on the link for the video feed, is hardly akin to an individual user stringing up a television antenna on the roof.

Ouch.

Aereo distances itself from FilmOn X; Kanojia says he doesn’t know what its technology consists of. For FilmOn X’s part, CEO Alki David wrote me today to say Collyer was “wrong” and added: “She cannot possibly know what she is talking about, as she is neither an engineer nor took any evidence. She made broad assumptions that benefitted the outcome.”

Maybe. But with entrepreneurs like David out there losing in federal court and then getting in the judge’s face, Kanojia has reason to want to get things over with. Hopefully the U.S. Supreme Court will take the broadcasters’ appeals of their Aereo losses, sort out the technology distinctions, and clarify for all of us what the future of Internet television should look like.