Aereo tries to rise from its Supreme Court ashes

After losing a critical Supreme Court case, it seemed the disruptive TV carrier Aereo had no options left and would soon be out of business. The 6-3 decision said that the company was infringing the copyrights of TV broadcasters by redirecting their transmissions over the Internet to consumers.

And indeed, Aereo suspended its service after the ruling. But using a new legal argument, the company now says it should be considered a cable carrier and, therefore, has a right to a compulsory license to carry the TV programming in dispute. (CBS is one of the plaintiffs in the lawsuit against Aereo.)

Aereo operated by running banks of small antennas in various cities where people could contract with the company for the use of one of the antennas. Aereo's antennas would capture over-the-air programming, which by law is delivered for free, and then relay it over the Internet to the company's customers.

At the heart of the suit originally brought against Aereo was a claim of copyright infringement. The broadcast companies said that although the copyrighted programming was free to consumers, Aereo was making money from the broadcasts. Under U.S. law, it's generally illegal to make commercial use of copyrighted material without the permission of the copyright owner.

Aereo argued that because there was one antenna per customer, the company acted as an equipment provider and the rights to view the material belonged to the customers. A majority of the court disagreed and ruled against Aereo, sending the case back to the original district court that first heard the suit.

However, in the decision, the justices noted that the company's operations "do not distinguish Aereo's system from cable systems" and that its commercial objectives are the same as those of cable companies.

In a letter to the district court in which both the plaintiffs and Aereo laid out next steps, Aereo claimed that given the Supreme Court decision, it should be considered a cable company and operate under the rules that govern cable companies. One of those rules is the ability to demand a compulsory license from broadcasters to deliver their programming for a predetermined payment.

The plaintiffs counter that Aereo had previously said it did not qualify as a cable system and that it's too late under legal precedent for the company to change its defense. However, the Supreme Court ruling could potentially invalidate that argument because it sent the case back to the district court "for further proceedings consistent with this opinion."

When contacted by CBS MoneyWatch, an Aereo representative said the company wasn't commenting beyond the letter and a blog post in which it said it will continue to postpone operations while it waits for "the lower court to map out our next steps."

  • Erik Sherman On Twitter»

    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.

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