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Aereo Appeals Response Brief - FINAL Filed 10-19-12 (1)

Aereo Appeals Response Brief - FINAL Filed 10-19-12 (1)

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Published by: Jordan Crook on Oct 22, 2012
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The Aereo system is designed to work automatically and only in response to

consumer direction. JA at 2523-24 (Lipowski Decl. ¶ 14). No Aereo antenna is

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tuned to a broadcast frequency unless and until a consumer tunes her individual

antenna to receive a particular channel by choosing “Watch” or “Record” with

respect to a specific program at a specific time. JA at 2523-2524, 2533 (Lipowski

Decl. ¶¶ 14, 36). Likewise, no recordings are made until a consumer so requests

by choosing “Watch” or “Record.” Id. Similarly, nothing is performed or

transmitted to a consumer unless and until the consumer chooses to watch her

recording. Id.

The following describes what happens within the Aereo system after a

consumer makes her selections:

a. The System Automatically Activates An Individual Antenna,
Allowing It To Receive An Over-The-Air Television Program.

The Aereo antennas, which are each about the size of a dime, are housed on

antenna boards at Aereo’s Brooklyn, New York facility. JA at 2524, 2526

(Lipowski Decl. ¶¶ 15, 22-23). When a consumer presses “Watch” or “Record,”

the web browser sends a request to Aereo’s Application Server which, in turn,

automatically sends a request to the Antenna Server. Aereo Op. SPA at 5, 7; JA at

1542 (Hrg. Tr. at 74:10-21); JA at 1820-21 (Kelly Decl. ¶¶ 44-45); JA at 2533

(Lipowski Decl. ¶ 35). The Antenna Server allocates resources to the user

depending on whether she is a “static” or “dynamic” user, a distinction based on

the user’s plan with Aereo. Aereo Op. SPA at 5, 7; JA at 1542 (Hrg. Tr. at 74:22-

75:20); JA at 1821 (Kelly Decl. ¶¶ 45-46); see also JA at 2533 (Lipowski Decl.

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¶ 35).14

Under no circumstance, however, is an antenna ever used by more than

one consumer at any given time. Aereo Op. SPA at 5; JA at 1549-50 (Hrg. Tr. at

104:20-105:1); JA at 1582 (Hrg. Tr. at 234:3-15).

By pressing “Watch” or “Record,” the consumer causes the Aereo system to

assign an antenna and tune that antenna to the requested channel, at which time the

antenna begins to receive a broadcast signal. Aereo Op. SPA at 6; JA at 1549

(Hrg. Tr. at 103:4-22); JA at 1822-23 (Kelly Decl. ¶ 50); JA at 1870 (Volakis Decl.

¶ 58); JA at 2532-33 (Lipowski Decl. ¶¶ 33, 35-37); JA at 2185-86 (Horowitz Rep.

¶ 64). The Aereo antennas are independently tuned to receive only the channel

requested by the consumer, and only receive broadcast signals when they are tuned

by a consumer. JA at 2523-2524, 2533, 2543-44 (Lipowski Decl. ¶¶ 14, 35-36,

65); JA at 814 (Volakis Dep. at 201:21-202:8). When an individual antenna is not

being used by a consumer, that antenna receives no broadcast signal. Id.

From the moment a signal enters the Aereo system via an individual

antenna, it is associated solely with the consumer who tuned the antenna, and

cannot be used or accessed by any other consumer. Aereo Op. SPA at 6; JA at

1549-50 (Hrg. Tr. at 104:20-106:24); JA at 1558 (Hrg. Tr. at 137:1-7, 139:12-16);

JA at 2386-88, 2391 (Pozar Decl. ¶¶ 10-14, 19); JA at 2191 (Horowitz Rep. ¶ 81);

14

Certain Aereo users (“static users”) are assigned to the same antenna each time
they use the Aereo system. Aereo Op. SPA at 5; JA at 1542 (Hrg. Tr. at 74:22-
76:11); JA at 1822 (Kelly Decl. ¶¶ 47-48). Other Aereo users (“dynamic users”)
can be assigned to a different antenna each time they log in. Id.

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JA at 1550 (Hrg. Tr. at 105:17-106:24). Although the Aereo system has certain

shared resources (as did Cablevision’s system), the unique, individual signal from

an antenna through to recording and playback to the consumer is never shared.

Aereo Op. SPA at 6; JA at 1549-50 (Hrg. Tr. at 104:20-106:24); JA at 1558 (Hrg.

Tr. at 137:1-7, 139:12-16); JA at 2386-88, 2391 (Pozar Decl. ¶¶ 10-14, 19); JA at

2191 (Horowitz Rep. ¶ 81).

b. Next, The System Automatically Makes A Unique, Fixed Copy,
Which Is Transmitted Only To The Consumer Who Made It.

The consumer’s request to “Watch” or “Record” also instructs the Aereo

system to automatically make a unique recording using the signal received by the

consumer’s individually-tuned antenna. Aereo Op. SPA at 6; JA at 1822-1824

(Kelly Decl. ¶¶ 50-52). As found by the District Court, there are several key

attributes of these copies: (1) the copies are unique fixed copies and associated

only with the consumer who made them; (2) each transmission to the consumer is

from the consumer’s unique copy; and (3) the transmission of the unique copy is

made solely to the subscriber who requested it. See, e.g., Aereo Op. SPA at 19-20,

25-26 (finding that in all cases Aereo transmissions are “made from a unique copy,

previously created by that user, accessible and transmitted only to that user”).

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i. The Copies Are Unique Fixed Copies Associated Only With
The Consumer Who Made Them.

The signal from each individual antenna can be used to make a copy only for

the consumer who tuned the antenna. Aereo Op. SPA at 6; JA at 1549-50 (Hrg. Tr.

at 104:20-106:24); JA at 1558 (Hrg. Tr. at 137:1-7, 139:12-16); JA at 2386-88,

2391 (Pozar Decl. ¶¶ 10-14, 19); JA at 2184 (Horowitz Rep. ¶ 59). Each unique

recording (whether initiated from the “Record” or “Watch” mode) is written to

hard drive disk storage, is associated solely with the individual consumer who

tuned the antenna and made the recording, and can be accessed and played back

only by that consumer. Id.; see also Aereo Op. SPA at 29-30; JA at 1639 (Hrg. Tr.

at 310:8-311:6); JA at 1550-52 (Hrg. Tr. at 106:25-107:24, 111:12-114:17). Also,

each recording made by an Aereo member—whether by pressing “Watch” or

“Record”—is a unique copy with its own individual attributes, glitches, and

artifacts. JA at 2183 (Horowitz Rep. ¶ 55 n. 42); JA at 1636-37 (Hrg. Tr. at

300:16-304:14); JA at 2540 (Lipowski Decl. ¶ 56).

From the moment an individual antenna is tuned by a consumer, the signal

from that antenna is available only to that consumer. Aereo Op. SPA at 6; JA at

1549-50 (Hrg. Tr. at 104:20-106:24); JA at 1558 (Hrg. Tr. at 137:1-7, 139:12-16);

JA at 2386-88, 2391 (Pozar Decl. ¶¶ 10-14, 19); JA at 2191 (Horowitz Rep. ¶ 81);

JA at 1550 (Hrg. Tr. at 105:17-106:24). The recording made from that signal can

be accessed and played back only by the consumer who made the recording. Aereo

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Op. SPA at 19-20; JA at 1550 (Hrg. Tr. at 105:17-106:10); JA at 2535 (Lipowski

Decl. ¶ 43); JA at 2183 (Horowitz Decl. ¶ 55, n. 42). In other words, even if two

Aereo users make a recording of the same underlying television program and play

back those recordings at the exact same time, each user is still watching a different,

unique recording, with its own unique qualities. If one user’s recording fails or if

she deletes her recording, she will not be able to access the other user’s copy of

that program. JA at 2535 (Lipowski Decl. ¶ 43).

In addition to being unique, the copies in the Aereo system also are “fixed”

copies. Aereo Op. SPA at 29-30; JA at 1639 (Hrg. Tr. at 310:8-311:6); JA at 1550-

52 (Hrg. Tr. at 106:25-107:24, 111:12-114:17); JA at 2538-39 (Lipowski Decl.

¶¶ 51-55); JA at 1546, 1552 (Hrg. Tr. at 90:7-9, 113:6-19). Whether in “Watch”

mode or “Record” mode, the unique recording made by the consumer is fixed to

disk, is retained for an extended period of time, is controlled and managed by the

Aereo user, and can be used to store a copy of the entire work. Aereo Op. SPA at

6-7, 30; JA at 1545-56 (Hrg. Tr. at 87:11-88:3, 88:15-90:9); JA at 1550-51 (Hrg.

Tr. at 107:9-108:1, 108:23-110:15, 111:20-112:21); JA at 1636, 1639 (Hrg. Tr. at

297:12-300:5, 310:22-311:6).15

15

A recording is necessary to enable the consumer to pause, rewind and fast-
forward the transmission of that underlying program. JA at 1636 (Hrg. Tr. at
298:14-23); JA at 2479-80 (Kanojia Decl. ¶¶ 33-34).

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Recordings in both modes are written to a hard drive and stored for at least

the duration of the user’s viewing experience. Aereo Op. SPA at 6-7, 30; JA at

1550-51 (Hrg. Tr. at 108:23-110:15, 111:20-112:21); JA at 1545-46 (Hrg. Tr. at

88:15-90:9); JA at 1551-52 (Hrg. Tr. at 112:22-114:17); JA at 1554 (Hrg. Tr. at

121:15-25); JA at 1559 (Hrg. Tr. at 141:7-13); JA at 1636 (Hrg. Tr. at 297:12-

300:5).16

As the District Court found, the fixed copies in the Aereo system are

both physically and functionally different from the temporary “buffers” used in

Internet web-streaming. Aereo Op. SPA at 29-30; JA at 1639 (Hrg. Tr. at 310:8-

311:6); JA at 1550-52, 1636 (Hrg. Tr. at 106:25-107:24, 111:12-114:17); JA at

2538-39 (Lipowski Decl. ¶¶ 51-55); JA at 1546, 1552 (Hrg. Tr. at 90:7-9, 113:6-

19).17

16

If a recording was made by the consumer selecting “Record,” the recording is
automatically retained until the consumer deletes it. Aereo Op. SPA at 7; JA at
1546 (Hrg. Tr. at 90:7-9). If the recording was made by the consumer selecting
“Watch,” the recording is automatically retained until the consumer has finished
watching it, at which point it is deleted unless the consumer saves the recording by
pressing “Record.” Aereo Op. SPA at 7; JA at 1545-46 (Hrg. Tr. at 88:15-89:24).

17

Unlike buffer copies used for Internet streaming, which are temporary copies
that “act purely to pass through data,” the Aereo copies—whether made in
“Watch” or in “Record”—are fixed copies, saved to hard disk, “which are
‘nonvolatile storage’ as typically used to make a recorded copy on a standard
DVR.” Aereo Op. SPA at 30; JA at 1639 (Hrg. Tr. at 310:8-311:6).

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