(Adds order from judge, paragraphs 4-6)
By Jonathan Stempel
NEW YORK Aug 1 Aereo Inc, the video streaming
company that suspended service after the U.S. Supreme Court
found it violated copyrights of television broadcasters, urged a
federal judge to let it operate like a cable system, saying it
likely would not otherwise survive.
In a Thursday night filing with the U.S. District Court in
Manhattan, the startup backed by billionaire Barry Diller said
it needed emergency help because it could not continue incurring
"staggering costs" without having revenue come in, and required
"some time" to make the necessary technological changes.
"Unless it is able to resume operations in the immediate
future, the company will likely not survive," Aereo told U.S.
District Judge Alison Nathan in Manhattan, who oversees the
case. "The company is figuratively bleeding to death."
In an unusual order on Friday, Nathan set aside Aereo's
request, saying the company "jumped the gun" by seeking relief
without getting her permission first.
She instead ordered the broadcasters by Aug. 15 to draft a
proposed order, consistent with the Supreme Court decision,
directing Aereo not to violate their "public performance"
rights. Aereo would have a chance to respond.
R. David Hosp, a lawyer at Fish & Richardson representing
Aereo, did not immediately respond to requests for comment.
Bruce Keller, a partner at Debevoise & Plimpton representing the
broadcasters, declined to comment.
Aereo's future became imperiled on June 25 when the Supreme
Court ruled that the company had infringed broadcasters'
copyrights by capturing live and recorded programs through
antennas and transmitting them to subscribers who paid $8 to $12
The decision was a victory for broadcasters including CBS
Corp, Comcast Corp's NBC, Walt Disney Co's
ABC and Twenty-First Century Fox Inc's Fox,
which Aereo did not pay for programming.
On June 28, Aereo suspended its streaming service. It
suffered another setback on July 16 when the U.S. Copyright
Office said it did not agree that Aereo qualified automatically
for a license available to cable systems, but would hold off on
a decision until courts could address the company's status.
A federal appeals court on Thursday refused to grant Aereo
an injunction, and questioned whether the company had even
"properly raised" the issue of whether it was a cable system
entitled to a compulsory license. Aereo submitted its emergency
request to Nathan less than five hours later.
In a letter to the appeals court, Keller had said Aereo's
substantive arguments should fail.
He pointed to company statements predating the Supreme Court
decision that it did not qualify as a cable system, and said the
assessment by the Copyright Office was consistent with a view it
has held for decades.
Diller's IAC/InterActiveCorp, which invested in
Aereo, on Wednesday posted a quarterly loss that included a
$68.4 million writedown on investments. IAC said Aereo was the
largest component of that writedown.
The case is American Broadcasting Cos et al v. Aereo Inc,
U.S. District Court, Southern District of New York, No.
(Editing by Lisa Von Ahn and Tom Brown)