CBS Tells Court: No One Could Possibly Read Our Statements 'We Will Sue Aereo' To Mean We Will Sue Aereo

from the uh,-nice-try dept

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.

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Companies: aereo, cbs

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Comments on “CBS Tells Court: No One Could Possibly Read Our Statements 'We Will Sue Aereo' To Mean We Will Sue Aereo”

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Anonymous Coward says:

and why is it ‘their’ signals. These signals get broadcasted everywhere, not only do the media cartels get a govt established broadcasting monopoly to broadcast for private and commercial use, while wrongfully preventing others from doing the same, they also get a monopoly privilege to prevent others from doing what they want with the signals around them? Really?

Abolish govt. established broadcasting and cableco monopolies for commercial and private use. These people are spoiled with these monopoly privileges and these unowed privileges have gone way too far.

Wally (profile) says:

Re: Re: Re: Re:

I understand that 10% doesn’t mean all that much in plain sight…but that 10% when first proposed would have killed PBS due to budget reasons. Most of PBS’s stuff was and still is either non-profit status independently funded (donation pledge drives and funding from the National Science Foundation, viewer’s like you…etc), or done through volunteer work. Mr. Rodger’s Neighborhood used to run on a budget of only $20.32.

Anonymous Coward says:

Re: Re: Re:2 Re:

I was given to understand that the 10% in question is for the most part being used to bring PBS’s signal to people in rural areas. Most of them can be found in “red” states, ironic given that it’s the conservatives who are trying to cut govt. funds to PBS. The children of red-staters would no longer get Sesame Street–they’re pretty much the ones who would suffer if the 10% was cut today.

Wally (profile) says:

Re: Re: Re:3 Re:

I’m sorry that you think that politicizing that issue to Democrat vs Republican is so important. I guess you don’t want your children to be whom ever they choose politically. PBS on;y serves to educate…and inform. It will give both sides and let viewers conclude for themselves…thus preserving what we “red-staters” call democracy….I guess education is so political for you that you don’t want your children to have their own political views and perceptions of the world.

As for the educational access PBS brings….Mr. Rodger’s Neighborhood taught slews of generations of children to love unconditionally and the man’s infectious love for the good of the human condition is something that inspired mt career as a psychologist. Sesame Street teaches numbers and letters…certainly that has to be political. Martha Speaks currently teaches children word use and enforces it by using a special word throughout the show as it would be used in real life.

Yes…PBS is definitely a red-state, blue-state issue… /s

sleezy martinez says:

Re: Re: Re: Re:

Well, direct funding is not the whole case. Remember that the thing that is most important is the broadcast monopoly, the reserved frequencies, the right to build transmitters and stuff and all those things that we don’t generally think as ‘subsidies’ although they really are.
Imagine if they had to BUY it all on a commercial market instead of having it granted (sure, for a fee) on the grounds that access to TV is socially desireable and therefore society should facilitate broadcast to some etities.

David Hoffman (profile) says:

Re: Re: Re:

The cable companies have strong defenses against the abolishing of the franchise agreements they have until after the expiration of the contract, if an expiration date exists. You can go into the municipality of your choice and ask for permits to build a secondary network at your expense. That would break the monopoly.

As far as the OTA broadcasters go, you have to have some rules for who uses what frequency, or all you get is noise. Taking away the monopoly use of an OTA TV frequency/channel would lead to useless noise in the one to many broadcasting environment.

Anonymous Coward says:

Re: Re: Re: Re:

“The cable companies have strong defenses against the abolishing of the franchise agreements they have until after the expiration of the contract, if an expiration date exists.”

That’s like saying that IP holders have strong arguments against the retroactive reduction of IP lengths. No they don’t and I don’t care. I want the govt to serve the public interest and just because a bought govt made some arbitrary agreement in the past, an agreement not for the public interest, doesn’t mean we as a public should acknowledge that agreement. If the agreement was not in the public interest we should force the govt to take it back under eminent domain or something. We shouldn’t sit idle and allow this injustice against the public to continue because of some ‘agreement’ that the public and I, a member of the public, never agreed to.

That’s like saying the govt ‘agreed’ to give a corporation free money for a long long time. So we have to honor that agreement and continue to give them free stuff, or something in return for almost nothing. I don’t really care, these aren’t ‘agreements’ so much as bad laws that need to be abolished. and we, the public, need to force their abolition. No, these monopoly privileges were unfair, one sided agreements created in return for politicians getting campaign contributions and revolving door favors at public expense and these agreements should not be continued. We, as a people, should not tolerate them. Let their agreement argument go up against millions of protesters and angry voters saying we don’t care, abolish these monopoly privileges. That should teach them to stop making bad agreements at public expense.

“As far as the OTA broadcasters go, you have to have some rules for who uses what frequency, or all you get is noise. Taking away the monopoly use of an OTA TV frequency/channel would lead to useless noise in the one to many broadcasting environment.”

I think most of this is unsubstantiated fearmongering put out by the monopolists who unfairly and disproportionately benefit from these laws at the expense of everyone else. There is no evidence whatsoever to suggest that all we would have is noise. It goes against very basic economic principles. If that is so then no one, by definition, would use the spectra and there would be no need to grant monopoly privileges in the first place.

What you define as ‘noise’ is people using the spectra. They may not be using the spectra in the best interests of the current monopolists but they will be using the spectra meaning it’s useful for those using it. To the extent that more usage results in more clutter and it becomes unusable, as you say, fewer people will naturally use it, or people will switch spectra, to the point where it once again maximizes utility. Otherwise it will not be economically beneficial to use and so there would be no clutter which will, once again, encourage more usage. Econ 101.

The history of broadcasting also disagrees with you. When spectra was first discovered regulations came slowly because they were used by people and useful. If the govt simply took all the spectra and handed it over to private use in the way it is now all at once the public would have been outraged. So what they did is they slowly slowly started regulated more and more spectra and, at first, to persuade the public that speech won’t be stifled they had minimum requirements to ensure a minimum amount of competition. Then, slowly slowly, they started removing those requirements to the point where the whole media is what it is now, under the control of a very few. This wasn’t a sudden change, it was a gradual change, for a sudden change would be like throwing a frog (the public) into boiling water all at once. But to gradually heat the frog in boiling water with the frog in it works much better, which is how our broadcasting rights were slowly yet wrongfully eroded over time.

Also, I am not arguing against no regulations whatsoever. I am arguing against government established broadcasting and cableco monopolies for private or commercial use. No commercial or private speech deserves to be privileged by the government for such government privileges necessarily hinder non-privileged speech resulting in the government regulating speech into the hands of private and commercial entities, which is the last thing we want.

Anonymous Coward says:

Re: Re: Re:2 Re:

“after the expiration of the contract”

Also, there are two more arguments against this

A: Politicians agreed to serve the public interest upon being hired. By granting these information distribution monopolies they broke that agreement and by not ungranting them they are continuing to break that agreement. They are serving their own personal interests (ie: their interests in receiving campaign contributions and revolving door favors) over the public interest.

B: My neighbor can not agree to sell my car to the person across the street. Likewise, these politicians (especially upon breaking their agreement to serve the public interest) can not agree to sell my right to equally use those broadcast spectra, against my interests, to some random stranger (whoever the monopolist is). It’s not in their position to make such agreements. I never agreed to relinquish my equal rights to use broadcasting spectra and if government wants to regulate broadcasting spectra they must do so in the public interest.

Anonymous Coward says:

Re: Re: Re:3 Re:

Also, the agreement that politicians and the government created with the public, that they will serve the public interest in exchange for being allowed to govern us, existed before these broadcasting monopolies existed. Indeed, by definition, the public (and I) will not agree to allow the government and politicians to govern us (or me) if they do not agree to do so in the public interest.

So those receiving these broadcasting monopolies from government should be aware of the prior agreement that government had with the public to serve the public interest and they should know, ahead of time, not to engage in agreements that violate this prior agreement.

Govt established broadcasting monopolies for private or commercial use are not in the public interest. I want the government to hold up to its end of the agreement and to govern in the public interest and to abolish these government established monopoly privileges.

Thomas Tucker says:

Re: Re: Re:

Or, i dunno this may seem a bit crazy…. but you can stop funding the television stations that are out for profit , and use media as a way to generate revenue vs a way to inform the community of …well news.

Give more money to PBS who provide services to the community. Really you don’t think there aren’t dozens of people out there willing to take on the burden of being a public service network?

out_of_the_blue says:

Re: Basic tips for clones.

) Make a title for your post. This makes an impression on the reader before he can skip it.
) No one liners unless quite witty. Your three words aren’t even vaguely witty, let alone barbed.
) No vulgarity unless repeating from the ankle-biters.
) Try to work in a dig at Mike, or Google, or the current schtick of linking insane cops to video games. Schtick is the key. It doesn’t mean just daffy jokes, but shoehorning in topics whenever possible. It’s done partly to mock Mike’s mania for slanting every anomaly as means to attack copyright or patents.

Anonymous Coward says:

Re: Re: Basic tips for clones.

Titles don’t make a difference, people skip your posts in gerneral, especially if they’re useless “After 3 hours and 40 minutes, charity comment” titles.

Your paragraphs aren’t witty; give the guy a break.

Right, because your stupidity is already so immense, vulgarity would make you worse.

So in order to point out Masnick making himself look worse, you make yourself look worse. Seems legit

out_of_the_blue says:

The prior case isn't exactly over.

“The broadcasters have asked the Second Circuit to rehear the appeal before a full panel of judges. Meanwhile, the case also continues in the discovery stage at a lower federal court.” — Therefore I’d bet Aereo’s new suit is tossed.

@ AC: “and why is it ‘their’ signals. [sic]” Sheesh. This really is the level of thinking here at Techdirt… Because CBS pays the management, the talent, the technicians, the electric bills, and every other expense to produce the content, while Aereo pays NOTHING.

ChronoFish (profile) says:

Re: The prior case isn't exactly over.

Aero isn’t just “rebroadcasting”. They are providing a legitimate service. A maintained wireless antenna service.

Aereo Haters – Please draw the line – because I’m not seeing it:

Some citizen (Cit) of Manhatten lives in 2nd basement (2 floors under ground) of a popular high-rise. Cit loves to watch Big Bang Theory, but reception does not penetrate to the depth of his apartment.

Case 1.
So an electrical engineer (of which Cit is not) offers to mount an antenna on the roof, runs a long wire down to the basement and into Cit’s TV. The improved performance is great and he gladly pays the EE for his time.

Case 2.
EE was happy to help out Cit for a nominal fee, but the long wire gets cut by maintenance crews and other tenants of the building. So he begin charging Cit a yearly fee for maintaining the antenna.

Case 3.
EE likes the arrangement he has with Cit, but realizes that his repair costs would shrink if he made the antenna connection wireless. So he configures several WAPS to send the digital information from the top of the building to Cit’s apartment.

Case 4.
EE realizes that the wireless connection could just as easily run from the top of his building as it could from the top of Cit’s building. His building has fewer pigeons that break the antenna, so he moves the antenna and is able to provide Cit with better service.

Case 5.
EE realizes that Cit does have an internet connection, so he configures the setup to provide the signal over the internet instead of a dedicated WLAN.

Case 6.
EE realizes that Cit is not the only one in this predicament, so he start Aereo and offers the service to everyone who lives in the city…each getting their own dedicated antenna.

Case 7.
EE realizes that providing everyone with their own antenna is ridiculous and consolidates it down to one antenna which is then shared with all his customers.

Please tell at which case you draw the line – and then why.


Arthur Moore (profile) says:

Re: Re: The prior case isn't exactly over.

Media companies have constantly argued that it’s illegal at Case 3. They argue that converting from OTA to a digital form is creating a derivative work. They’ve mostly failed, but that’s where it is in there fantasy world.

Case 7 would probably have resulted in Aero being found illegal, even if it’s one antenna going to multiple TV tuners. That’s because judges are normally not technically competent, and would say that a “Copy” of the signal is being made for each tuner.

Is it crazy? Hell yes. Sadly, that’s the problem with judges and politicians deciding on things that they know nothing about except what lobbyists and lawyers tell them.

Now this judge got it right. We need more like him.

David Hoffman (profile) says:

Re: Re: The prior case isn't exactly over.

Case 6, as in Aereo, is the bogus one. Those tiny Aereo antennas are not capable of picking up a decent ATSC signal on their own. What you have is a clever antenna array made up of those tiny antennas. If each of those antennas was properly sized for quality OTA signal reception, then Aereo would be on its way to substantiating its claims of only providing a remote exclusive antenna service. The non continuous nature of the use of any particular “antenna” also points to the fraud of Aereo. An antenna mounted on the roof of my house is going to be used by me exclusively at my physical address.

Anonymous Coward says:

Re: Re: Re: The prior case isn't exactly over.

You might want to go over how the Aereo setup works, you seem to have a complete misunderstanding of the mechanics in play.

Those tiny antennas are PERFECTLY capable of picking up a decent ATSC signal on their own. As the commenter above me states, you don’t know much about RF comms, do you? UHF goes basically almost all the way up to 900mhz (roughly, it goes to like 844mhz). Cellular USB modems have an antenna of roughly the same size. These are capable of HDSPA+ and can get 7.2Mbps, which is far greater than the bandwidth required for HD or SD video. GSM runs in the US at 850mhz or 1900mhz. I’m pretty sure that a dime sized antenna can pickup an ATSC broadcast just as well. So I’m not really sure what you are trying to get at here.

There is no such “non-continuous nature of the use of any particular antenna”. Each user is assigned a dime sized antenna. They rent that particular antenna. There is no “array” of antennas servicing the entire customer base. There is one antenna per customer.

You just basically decided in your head thats how it has to work and then extrapolated from there. You might want to go back and revisit this idea as it is completely at odds with the way they are actually setup.

An antenna mounted in Aereo’s antenna farm is going to be used by you exclusively while you are in the reception area of the network that is being broadcast.

Its no different than having a longer cable to your antenna, just over the internet.

Michael (profile) says:

Re: Re:

It is probably less about Aero and more about the likely loss of the revenue streams from cable operators.

If Aero is found to have found a legal loophole in the jumbled mess around broadcasting rights, every cable operator that is currently paying CBS can simply buy an antenna and a ‘really long cable’ and never have to pay CBS a dime again.

Then, the only thing CBS could do is stop broadcasting clear over-the-air, but that would make them…well, I guess FX or some other lowly non-broadcast network.

John85851 (profile) says:

So what does the CEO really mean

So when the CEO says he’ll raise profits for shareholders, we should believe it, but when he says he’ll sue Aereo, he was just kidding or lying or pulling our leg or whatever.

Which statements are we supposed to believe?

And doesn’t the CEO have a “manager” or “handler” to make sure he doesn’t say anything that isn’t “official”? Then why is this threat not an official statement?

Anonymous Coward says:

Re: 'splain dis to me Lucy

Self-fulfilling prophecies at work..

17 year old kid jailed for posting rap lyrics grows up to be an angry criminal looking for revenge.

CEO of multinational company pardoned for making hollow legal threats against innovative startups that seek to change the industry lines the pockets of the government officials that pardoned him in the first place via lobbyist monies.

Wally (profile) says:

Re: antennas?

They set it up for multiple users on single groups of antenna’s so that the consumers of their services would not have to fiddle with placing their digital antennas and TV sets in special places of their houses.

Basically, their antenna captures free OTA signals that the broadcasting companies already allow people to pick up. Aero charges a monthly fee to keep their service active and to be able to continue service or repairs of their antenna. There is nothing illegal about them. They are bascially charging fees so they can continue servicing the equipment they deploy for your needs.

That One Guy (profile) says:

Re: Re: Re:

And therein lies the true hilarity of their actions, as if they really don’t intend to sue, why are they so opposed to a ruling that is nothing more than forbidding them from doing something they (supposedly) have no plans of doing in the first place?

Their own actions prove their words lies, and they don’t even seem to realize it(that or are hoping no one else will).

ChronoFish (profile) says:

via twitter

Dana McClintock ‏@Dana_McClintock 23 Apr

And we will be there to sue them RT: ?@TimAMolloy: Aereo Expands to Boston – First City Outside NYC – Next Month ??

Dana McClintock ‏@Dana_McClintock 3 Apr

“Just because a company gets sued by the broadcasters doesn?t make their service/business ‘disruptive.'” ?

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