UPDATE 1-Broadcasters take Aereo battle to U.S. Supreme Court

Fri Oct 11, 2013 6:28pm EDT

By Erin Geiger Smith

Oct 11 (Reuters) - The four major broadcasters asked the U.S. Supreme Court on Friday to hear their case against Aereo Inc, arguing the online service steals copyrighted television content.

Walt Disney Co's ABC network, CBS Broadcasting Inc , Comcast Corp's NBCUniversal, and Fox Television Stations Inc said allowing Aereo to operate is "already transforming the industry and threatening the very fundamentals of broadcast television."

The broadcasters are appealing an April decision by the 2nd U.S. Circuit Court of Appeals that denied their request to shut Aereo while litigation moved forward.

A spokeswoman for Aereo said the company would respond "in due course."

The Supreme Court will likely decide by the end of the year whether to take the case.

Aereo, backed by Barry Diller's IAC/InterActiveCorp , charges users a low monthly fee to watch live or recorded broadcast TV channels on computers or mobile devices. Aereo does not pay the broadcasters.

The broadcasters have said the service violates copyrights on television programs and is a threat to their ability to control subscription fees and generate advertising.

Aereo has countered that its service does nothing more than provide users with what they could get with a personal television antenna.

Several lawsuits between Aereo and television providers are playing out across the country, including in federal courts in New York, Massachusetts and Utah. The Supreme Court appeal stems from the New York litigation.

This week, a Boston federal judge denied a request by Hearst Television Inc's local station, WCVB-TV, that Aereo be prevented from providing WCVB programs to subscribers while the lawsuit there is pending.

While the broadcasters have not had success so far against Aereo, they did convince a California federal court to force Aereo competitor FilmOn X to shut down while a lawsuit there goes forward.

FilmOn X appealed the lower court's decision to the 9th U.S. Circuit Court of Appeals, which heard arguments in the case in August but has yet to issue an opinion.

A Washington D.C. district court judge also ruled in September that FilmOn X must cease to operate everywhere in the country, except the region covered by the 2nd Circuit, while the lawsuit brought by broadcasters there moves forward.

It is difficult to predict if the Supreme Court will accept a case, but one of the factors the justices use to decide is whether the case presents an issue of national importance, said David Wittenstein, a media attorney with the law firm Dow Lohnes.

There is not an official split between the U.S. appeals courts on whether Aereo and services like it violate U.S. copyright law, he said. The necessity of resolving different circuit court rulings is often a reason the high court accepts a case.

Still, Wittenstein said, the disparity between the way the district courts in New York and Massachusetts, on one side, and California and Washington D.C., on the other, have applied what is supposed to be uniform U.S. copyright law could give the justices reason to take the case.

A spokesman for Fox said broadcasters "rely on enforcement of the law to receive fair value" for their programming, and the Supreme Court filing "underscores our resolve to see justice done."

NBC and CBS declined to comment. ABC did not immediately respond to a request for comment.

A couple walks along the rough surf during sunset at Oahu's North Shore, December 26, 2013. REUTERS/Kevin Lamarque

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