Norman Leventhal is a Partner in our Washington D.C. office

Maybe there were a handful of media observers who, late in 2012, thought the recent on-line threats to the traditional broadcast television model would be settled quickly; they would be wrong. In the last six months, we have reported on numerous developments among the players, in the courts, and in the halls of Congress concerning the upstart Internet distributors of network television programs (principally, Aereo and Aereokiller). See previous blogs: January 18,  April 15 and May 2.

As of this week, the battle continues to rage on in multiple forums:

  • An appeal by broadcast companies to the Court of Appeals for the Second Circuit en banc, asking the full court to overturn the panel's refusal to enjoin the further deployment and operation of Aereo is pending;
  • In the meantime, Aereo filed a motion for summary judgment with the lower court in NYC, requesting dismissal of the underlying action;
  • A new lawsuit by many of the same broadcast companies was recently filed in the federal court in Washington DC attempting to enjoin copycat service Aereokiller from instituting its service there;
  • An appeal to the Court of Appeals for the Ninth Circuit from an ongoing injunction against Aereokiller by a federal judge in California following Ninth Circuit precedent remains in play; and
  • With new services proposed in Boston, areas of North Carolina, and Atlanta, Georgia, you can expect additional lawsuits being brought in federal courts in the 1st, 4th and 11th Circuit Courts of Appeal -- in fact, CBS has already informally announced that it will sue Aereo in Boston.

With litigation ongoing in three federal circuits, and likely lawsuits in three others, there remains little doubt the Supremes will get this case sometime in late 2013 or early 2014. Unless, that is, Congress actually does something.

One problem that the broadcasters face in this scenario, however, is that the underlying legal precedent on which both Aereo and Aereokiller are premised was the 2008 Second Circuit case in Cartoon Networks v. CSC Holdings ("Cablevision") which the Supreme Court refused to review in 2009. Perhaps the Supremes will be more inclined to intervene if additional circuits follow the Ninth Circuit precedent rather than the Second Circuit's 2008 ruling.

On the other hand, is the public better off with a highly legalized opinion on such minutia of the 1976 Copyright Law as

  • is the remote "buffering" used in the Cablevision RS-DVR case a "reproduction?"
  • is the "copy" residing on the remotely located Cablevision DVR owned by the individual subscriber or the cable system?
  • is the playback of a recording not made in the home a "public performance" or a private one?
  • do the Aereo mini-antennas retransmit "public performances" or just thousands of simultaneous private ones? 

...or would it be better for the public and industry stakeholders alike to have Congress affirmatively establish the digital ground rules for the 21st Century based on reasoned and supportable policy? Ok, maybe that is asking for too much.

A May 16 session of the House Subcommittee on the Courts, Intellectual Property and the Internet was only the beginning of what is sure to be a long process.  As Subcommittee Chairman Howard Coble (R-NC) noted, this hearing was "an initial step [towards] a comprehensive review of the nation's copyright laws."

Nevertheless, if broadcasters and programmers do not begin an intensive lobbying effort now in anticipation of prospective hearings before the Congress on the copyright law, they are missing a valuable opportunity and, indeed, a critical one for their business.

More to come as new developments arise.

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