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In their fight to shut down Aereo, a start-up that lets viewers stream TV to their mobile device for $8 a month, broadcasters are urging a federal court in Boston to apply a recent ruling that slapped a broad injunction on a rival service with Aereo-like features. In response, Aereo claims that the two companies’ technology are not the same and that the ruling, issued in the District of Columbia, misunderstands copyright law.

The Boston court dispute is just one flashpoint in a larger legal chess game between broadcasters, who argue that Aereo is illegally retransmitting their signal. The start-up has an avowed goal of breaking up “the bundle” model of television in which consumers are forced to buy expensive packages of channels, many of which they don’t watch.

Aereo claims that its service is distinct from earlier internet TV models, which have been found illegal, because it provides subscribers with their own tiny antenna to transmit and record over-the-air television — an act that Aereo likens to making a private copy, such as a VHS recording, which is permitted under copyright law.

In the new court filing in Boston, reported by the Hollywood Reporter, Aereo makes the following claims about the District of Columbia opinion, which shut down a service called FilmOnX:

“To the extent the Opinion makes factual findings about the technology used by FilmOn, certain descriptions of the technology do not appear to track how the Aereo technology actually works.”

“In finding that all individual transmissions of separate copies of the same work somehow must all be aggregated as a “public” performance, the Opinion improperly conflates “work” with “performance,” […] The undisputed facts establish that an Aereo member may only transmit her own individual copy to herself. That is the performance at issue and it is not “to the public.”

“The Opinion further erroneously ignores the importance of the user’s volition, which was emphasized in Dish Network. Because an Aereo member makes a private transmission that only she is capable of receiving, the performance that user makes is private”

Yes, it’s all rather technical but the upshot is that the Boston court will have to decide which opinion to follow: that of a New York appeals court which favors Aereo, or that of lower courts in Los Angeles and DC, which side with broadcasters (though neither of the latter opinions involve Aereo directly).

In the meantime, the court rulings mean Aereo is for now available in many parts of the country but that it’s effectively shut out in nine western states. The legal mess is likely heading to the Supreme Court though Aereo has time on its side. Here’s the new filing:

Aereo Boston filing

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