You may recall that back in April we wrote about CBS threatening to sue Aereo
if it launched in Boston, as announced. We quoted CBS's Dana McClintock, exec VP of communications, who said on Twitter:
We will sue, and stealing our signal will be found to be illegal in Boston, just as it will be everywhere else.
Seems like a pretty clear and definitive statement. CBS CEO Les Moonves said something similar in a conference call:
If they put up another signal, we'll sue them again.
Aereo then did exactly what it should: it sued first
, seeking a declaratory judgment that its service was legal and that it could launch in other markets without fear of expensive lawsuits from CBS. This is what the whole declaratory judgment setup is for. Exactly cases like this where one party threatens another in an effort to scare them off by the threat of expensive court battles.
However, CBS now, hilariously, is trying to claim that when it made those statements, it didn't really mean it would sue Aereo
, so there's no controversy and the case should be dismissed. Let me just repeat this one for you. CBS is claiming that when two of its top execs said "We will sue" and "we'll sue them again," it didn't actually mean that it would sue. Wow. That's a special sort of chutzpah.
Instead, CBS claims that Aereo should sit pretty and wait to be sued
"If the threat of litigation is as imminent as Aereo claims, it will have every opportunity to defend its actions if and when it launches in other cities and if it is sued in those jurisdictions."
Um, that's the whole freaking point of declaratory judgment actions, to avoid having to sit and wait to be sued, so that a company can get on with its business. CBS seems to be admitting here that it's threatening Aereo just to mess with its business plans. How nice.
How about the direct statements from the execs? Eh, what's a little public threat of lawsuits between execs and the press? Certainly not a serious threat, right? Concerning the McClintock statement, they claim that his statement was only referencing Boston, so it's not like it really matters.
Mr. McClintock's "threat" clearly is contained to Boston; his only reference to other locations is the vague assertion that Aereo “will be found to be illegal" "everywhere else" – hardly a concrete promise that any of the named defendants intends to sue Aereo in some other location.
Er, actually, yes, read the quote again. It's a pretty clear statement that Aereo will be sued "everywhere." How about the Moonves quote?
One simply cannot read what Mr. Moonves actually said and say with any certainty – much less with the level of concreteness necessary to sustain a declaratory judgment action – that CBS announced an intention to sue Aereo in any city other than Boston.
Um, again, Moonves's quote is pretty clear that they will sue anywhere Aereo shows up. He said "if they put up another signal, we'll sue them again."
I guess you can give CBS's lawyers creativity points for trying.