Jessica M. Karmasek Nov. 13, 2013, 4:15pm

WASHINGTON (Legal Newsline) -- A Washington, D.C.-based legal foundation is asking the U.S. Supreme Court to review a lower court ruling that, it contends, threatens to legitimize a business model based entirely on the "unauthorized, for-profit exploitation of the copyrighted works of others."

The Washington Legal Foundation, in an amicus brief filed in August, argues that the U.S. Court of Appeals for the Second Circuit misapplied federal copyright law in American Broadcasting Companies Inc. v. Aereo Inc.

ABC, the creators, producers and distributors of original broadcast television programming, brought a copyright infringement action against Aereo.

Aereo captures over-the-air television broadcasts and retransmits them -- for profit and without permission, WLF notes -- over the Internet to its subscribers by using a network of thousands of tiny antennae.

In its 21-page brief in support of petitioner ABC, WLF asks the nation's high court to grant review and decide whether Aereo "publicly performs" a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

The foundation says the exclusive right of "public performance" is among the most "critically important and economically significant" rights that federal law grants to copyright holders.

WLF argues that the Second Circuit's holding in the case threatens to "eviscerate" the public-performance right, by holding that the relevant inquiry is the potential audience of a particular transmission rather than the potential audience for any particular performance being transmitted.

"This case has vitally important implications for all copyright holders, recording artists and producers of original content," Cory L. Andrews, senior litigation counsel for the foundation, wrote in the brief.

"Unless discretionary review is granted by this Court, copycat services are sure to follow the blueprint endorsed by the Second Circuit for circumventing the longstanding protections afforded by federal copyright law."

WLF notes it has no direct interest, financial or otherwise, in the outcome of the case.

From Legal Newsline: Reach Jessica Karmasek by email at

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