It turns out that Aereo does have a plan B after all: it wants to be classified as a cable company.
After the Supreme Court sided with broadcasters CBS and ABC last month, ruling that the company was infringing their copyright, Aereo's future has looked doubtful, to say the least. But in a letter to US District Judge Alison Nathan, the company has a plan for its survival.
In the ruling, Aereo's services were described as "for all practical purposes a traditional cable system". And, the company now suggests, this is how it should be licensed to operate in future.
"If Aereo is a 'cable system' as that term is defined in the Copyright Act, it is eligible for a statutory license, and its transmissions may not be enjoined (preliminarily or otherwise," the letter reads.
Such a license would force it to pay copyright fees - but these fees would give blanket cover for all the content that Aereo transmits, and would be relatively inexpensive. Without such a license, it claims, it could go under.
Naturally, the broadcasters are up in arms.
"Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court's decision automatically transformed Aereo into a 'cable system' under Section III given its prior statements to this Court and the Supreme Court," they say. "It represented to this Court, for example, that it could not qualify as 'a cable system' and, therefore, that cases interpreting the application of Section III were 'irrelevant to the issues here'."
It's an argument that's already received an airing from streaming company Ivi - denied in 2012 - and from FilmOn, which amongst its other operations runs an antenna-based streaming service similar to Aereo's. It, too, has already been ruled against once. Now, though, in light of the Supreme Court's decision on Aereo, it's registered with the US Copyright Office as a small cable company and paid the license fee. Aereo plans to do the same.
Both companies, though, will need to persuade the Federal Communications Commission as well as the Copyright Office that they are entitled to pay the license fee and be treated as cable companies.
If Aereo dosn't win, though, it has a plan C. It suggests in yesterday's letter that even if its claim to effectively be a cable company is rejected, then it could still function legally by streaming programs after transmission, or time-shifting. Any injunction, it says, applies only to "near-simultaneous" rebroadcasting. Watch this space.
