Say what? (Mr. Carey via www.123people.ca)

What's the best way to respond when a court ruling doesn't go in your favor? Public histrionics, judging by statements from News Corp. COO Chase Carey.

Last week, the Second Circuit appeals court upheld a decision denying broadcasters their motion for a preliminary injunction against Aereo, the Barry Diller-backed startup that lets users live-stream broadcast TV. The plaintiffs in the case are a cohort of powerful media companies, including NBC, CBS, Disney and, yes, News Corp, whose COO Chase Carey is not taking the decision lying down.

At an industry conference in Las Vegas today, Mr. Carey told audience members that he's considering switching Fox from a free, over-the-air broadcast station into a pay cable one if the courts won't protect his company, reports Variety.

“If we can’t have our rights properly protected through legal and governmental solutions, we will pursue business solution. One solution would be to take the network and make it a subscription service. We’re not going to sit idly by and let people steal our content.”

The rights in question are hefty "retransmission fees" for carrying networking programming. The plaintiffs argue Aereo needs to pay for the right to show their content, Aereo argues the individual antennas assigned to each user means its that its streaming service doesn't count as a "public broadcast."

How seriously should "New Girl" obsessives (will they/won't they, amiright?) take this threat? "You can probably file this under 'sword-rattling aimed at regulators' more than 'things Fox actually intends to do,'" says AllThingsD's Peter Kafka.

To back up that thesis, News Corp. already had a passionate press release plea to interested overseers drafted. The full text below:

STATEMENT FROM NEWS CORPORATION PRESIDENT AND CHIEF OPERATING OFFICER CHASE CAREY REGARDING BROADCAST TELEVISION AND AEREO

NEW YORK, NY – April 8, 2013 – “News Corporation has a long-standing commitment to the broadcast television business, and to delivering the highest-quality entertainment, sports and news programming to our viewers on a localized basis.  We are committed to broadcasting under a business model where programmers receive fair compensation from parties that want to redistribute our product while continuing to make our product available for free to individual consumers that want to access our signal.

“We believe that Aereo is pirating our broadcast signal.  We will continue to aggressively pursue our rights in the courts, as well as pursue all relevant political avenues, and we believe we will prevail.

“That said, we won’t just sit idle and allow our content to be actively stolen. It is clear that the broadcast business needs a dual revenue stream from both ad and subscription to be viable. We simply cannot provide the type of quality sports, news, and entertainment content that we do from an ad supported only business model.  We have no choice but to develop business solutions that ensure we continue to remain in the driver’s seat of our own destiny.  One option could be converting the FOX broadcast network to a pay channel, which we would do in collaboration with both our content partners and affiliates.”

UPDATE: It looks like News Corp. isn't the only party given to grand pronouncements. Aereo spokesperson Virginia Lam emailed Betabeat the following statement, declaring that "Having a television antenna is every American's right.":

“Aereo has invented a simple, convenient way for consumers to utilize an antenna to access free-to-air broadcast television, bringing television access into the modern era for millions of consumers. It's disappointing to hear that Fox believes that consumers should not be permitted to use  an antenna to access free-to-air broadcast television. Over 50 million Americans today access television via an antenna. When broadcasters asked Congress for a free license to digitally broadcast on the public's airwaves, they did so with the promise that they would broadcast in the public interest and convenience, and that they would remain free-to-air. Having a television antenna is every American's right."

For more information about Aereo, check out our feature from last May. 

IAC chairman Barry Diller. (David Shankbone)

Aereo, the New York City-based service that lets cordcutters live-stream network TV online, has been making broadcasters feel litigious ever since IAC led a $20.5 million Series A in the startup last February. The group of 17 broadcasters suing Aereo argue that the individual antennas Aereo assigns each user are an illegal loophole to avoid paying networks costly retransmission rights--and that Aereo is guilty of copyright violation of their content.

This January, Aereo raised $38 million more, which should help cover its considerable legal fees. But the TV incumbents haven't found much support in the courts.

Today, the Second Circuit appeals court ruled in favor of Aereo, denying broadcasters their request for a preliminary injunction and upholding the decision made Federal District Court last summer. That vote of support is well-timed to Aereo's recent major marketing push--expanding service 29 new counties across New York, New Jersey, Connecticut and Pennsylvania.

CEO and founder Chet Kanojia got the inspiration for Aereo by looking at the 2009 Supreme Court case, which ruled that Cablevision was within its rights to move its DVR systems to the cloud. The court of appeals referenced that decision in their ruling today:

 “We conclude that Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not ‘public performances’ of the Plaintiffs’ copyrighted works under Cablevision. As such, Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action. Nor have they demonstrated serious questions as to the merits and a balance of hardships that tips decidedly in their favor. We therefore affirm the order of the district court denying the Plaintiffs’ motion.”

But as AllThingsD notes, today's decision just means that Aereo can continue operating while the trial is underway, it's not a legal all-clear.

It is worth noting the dissenting opinion from District Court Judge Denny Chin, who doesn’t buy the Cablevision argument at all: “The system is a Rube Goldberg-like
contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.”

Sounds like someone in chambers has a Google Reader full of tech blogs!

(Photo: Twitter/AbrahamJoseph)

It's been said that if Sex And The City were still on the air, Carrie would be dating a startup dude. (For related theories on how George Costanza would deal with Snapchat, please see @ModernSeinfeld.)

Lucky for Lena Dunham that her Brooklyn-based take on entitlement coincides with the rise of New York's nouveau tech riches. We already saw boho babe Jessa slum it with a square venture capitalist. (Factcheck on his "Steal My Sunshine" mash-up, though: In real life, VCs are much more partial to posting indie rock or dad rock on their Tumblr. And we're sorry to report you probably picked the same song of the year.)

But yesterday, the voice (of a certain hue) of her generation went ahead and did the damn thing. In a walk through Washington Square Park, Shoshana reveals that Marnie's ex-boyfriend Charlie built an app called Forbid.

"He sold it to, like, a very esteemed business tycoon for, like, a very large sum of money and now he has a corner office in said tycoon's building with, like, 11 employees," she says. "Charlie has a company?" Marnie whimpers, mentally filling her walk-in closet with plastic dresses.

"He's basically become a bougie nightmare," older-and-wiser Ray explains.

Knowing Ms. Dunham's penchant for borrowing from her actresses' real lives in a way that hits "a little close to home," it's hard not to see the parallel with the relationship between Allison Williams, who plays Marnie, and her boyfriend, CollegeHumor and Notional founder Ricky Van Veen. It may be a mystery to Gawker, but the two have been dating for awhile now. They were recently spotted on a double-date to the Grammy's with his pal John Mayer and American firework Katy Perry.

According to our logic, that makes IAC chairman Barry Diller the source material for "said business tycoon." Last May, we spotted Ms. Williams on the mogul's arm at a startup party in the lobby of IAC's Frank Gehry building. Both CollegeHumor and Notional are part of IAC's portfolio.

So what overheard Silicon Alley tidbits might Ms. Dunham have pilfered to incorporate into the episode?

Well, Forbid, which blocks users from making calls they know they shouldn't was apparently inspired by Charlie's breakup with Marnie. (The app version of *refresh refresh refresh*?) If users give in to drunken urges, customers have to pony up $10 to unblock the number. "People are really responding to software that protects them from themselves or other people," is Charlie's elevator pitch to Marns. "So the app is free, but breaking your word to yourself isn't." Monetizable behavior modification? Give this kid a $250k seed round!

The wood paneling in the fictional Chelsea lobby looked more Upper East Side salon to us, but upstairs it's all iMacs and Aeron chairs, as custom dictates.

Charlie's still trying to maintain his Bushwick roots. He brushes off an offer to hear the new Jack Johnson--good luck with that, buddy--and hasn't gone soft on the free candy perks just yet. He's also predictably vague about the size of his acquisition. "They paid me a shitload," he jokes before downgrading it to "not that much, but enough." Enough for an unlofted bed and a boatload of headbands, we premuse.

But what's that in the distance? The blare of an air horn as a coworking-space's-worth of 20-somethings dance their way through the open floor plan to the sounds of "Teach How to Dougie." Sorry, Marns. Charlie doesn't have time for your sadface because "the office next door doing a lip-dub thing for their YouTube channel." Although we appreciate the fameball-era callback, lipdubs are so 2009. Bonus points for predicting our long national Harlem Shake nightmare, though.

Later, slumped over in her "magician's assistant" outfit, Marnie has an epiphany. "You know who end up living their dreams are sad messes like Charlie?!" Uh-oh, sounds Lena Dunham just called ya'll not awesome.

XO, Nitasha, the richest Hindi you know

Killer Diller. (Photo: flickr.com/techcrunch, by Dave Getzschman)

Hey, look: It's some actual news out of CES, which has absolutely nothing to do with Evernote-integrated refrigerators! New York-based, Barry Diller-backed TV-streaming service Aereo has been teasing an expansion for some time now, and in a speech today from CEO Chet Kanojia, the company made its move.

The service will roll out to 22 new cities, including Boston, Atlanta, and Washington, D.C, starting in the late spring. Aereo will continue its "Try for Free" program in each of the cities, so would-be cord-cutters can get a taste, but it'll be invitation-only at first. 

To fund this attempt at world conquest, the company also announced it's closed a $38 million Series B led by IAC and Highland Capital. Get money, ya'll. Previous investors including FirstMark Capital, First Round Capital, High Line Venture Partners and "select individuals" also threw invested. The round was actually oversubscribed, Mr. Kanojia told Betabeat by phone from CES. Aereo was aiming for $30 million, but when financiers came clamoring, he said, "Alright." The additional capital will be used to build up infrastructure, marketing and cover some considerable legal bills. "We decided that we were gonna go into expansion mode and it came together very very quickly."

The cities were chosen based on population density, how many households get over-the-air broadcasts, and the age of the population. Age is a factor, he noted, because the majority of Aereo's customers tend to be 35 and under. "It's a great fit for their lifestyle," he enthused. "This is not your dad’s cable TV." Customers "use it as it fits their life."

Expansion plans were also related to proximity to Aereo's homebase. The headcount has doubled since our feature about Aereo in May, but it's still a small team, so they wanted to be able to, "knock off as much ground cover as we can in a two hour flight," adding, "L.A. has never been a TV town." Cities that get the service include: Boston, Miami, Austin, Atlanta, Chicago, Dallas, Houston, Washington, D.C., Baltimore, Denver, Detroit, Minneapolis, Philadelphia, Pittsburgh, Tampa, Cleveland, Kansas City, Raleigh-Durham, Salt Lake City, Birmingham, Providence, and Madison, WI.

All told, that new ground covers 97 million new potential customers. If you look at the younger demographic in those market, it could mean 30 million people, said Mr. Kanojia. Although he declined to disclose subscriber numbers, he did say usage numbers--the metric Aereo focuses on--is "extremely strong."

Of course, this depends on Aereo clearing all its present legal hurdles. Sure, they managed to avoid a preliminary injunction, but broadcasters are far from done fighting. We asked Mr. Kanojia whether her expected more lawsuits from local affiliates in new cities? "I don’t know who can sue us or not," he said with characteristic nonchalance. "Frankly I'm not too worried or focused on that." After all, if you start "obsessing" over every incumbent, that hardly leaves time for convincing people to cut the cord.

This post has been updated to include our interview with Mr. Kanojia. 

Aereo CEO Chet Kanojia. (Photo: informitv.com)

Loath to open Safari? Wedded to your Windows machine? If so, a bit of good news: TV live-stream provider Aereo is expanding beyond iOS, to provide support for browsers Google Chrome, Internet Explorer 9, Firefox, Safari and Opera.

"For us, it's significant because it opens up the universe of people that can experience Aereo," Virginia Lam, Aereo's VP of communications and government relations, told Betabeat.

"We've been telling folks for a while that PC support would be coming, so it's nice to finally put the news out."

The move dramatically expands the pool of people who can sign up. Until today, Aereo was limited to iOS devices (plus Roku boxes). Even Apple owners were forced to use Safari to access the service. Ms. Lam declined to quantify the expected gains in membership, but she noted a recent study suggesting something like 15 percent of the U.S. population uses iOS devices and concluded that "it's pretty significant."

"What we do know is that a lot of people, when we initially announced, at the press launch in February, we had tens of thousands of people raise their hand and sign up and request an invitation, but didn't have a device that was compatible," she added.

"We're excited for those people to come in the door and really get the full Aereo experience."

The announcement also positions the company for its coming rollout outside New York City. The plan, according to Ms. Lam, is to expand to 10 to 15 new cities across the country over the course of the next year, likely by next summer. "In terms of looking at, for lack of a better word, our story arc, this is a significant piece for us moving forward," she added.

Of course, we couldn't help but wonder about how yesterday's announcement of a Boxee TV offering complete with live HDTV broadcast channels and an unlimited DVR option. The most DVR space Aereo offers is 40 hours, available for either $12 a month or $80 a year. That seems likely to take some of the wind out of Aereo's sails.

Mr. Lam said she wasn't up on the specifics of Boxee's offering and so couldn't comment directly on their announcement. But she did offer a spirited defense of her company: "There's no box to install, there's no application to download, there's nothing else that you need to put into your home,"  she said.

"That is a major distinction between us and anyone else that's in that marketplace: Everything happens in the cloud, you use the device that you already own, you use the computer you already own, if you want to use Aereo," she elaborated. "There's none of this ancillary stuff that you need to buy or install in your home."

(Photo: The Atlantic)

If you're into bloodsports, there's another way to watch Obama v. Romney tonight. Aereo, the Barry Diller-backed startup that lets you live-stream network TV, just offered New Yorkers two hours of free viewing tonight from 9 p.m. to 11 p.m--and free viewing for both subsequent presidential debates. Users don't have to input their credit card information, but they do have to own a Mac since the service still only works through Safari browsers.

For those of you outside Steve Jobs' reality distortion field, there are a number of other options.

YouTube is live-streaming both the presidential and vice presidential debates for the first time ever, via both YouTube’s Election Hub and ABC News’s YouTube channel. C-SPAN is also live-streaming the rhetorical sparring match.

And if you miss cable's wailing of the partisan banshees to tell you how you're supposed to feel about the assorted sound bites, well, there's always Twitter.

Killer Diller. (Photo: flickr.com/techcrunch, by Dave Getzschman)

Apparently not content to disrupt the television business, Barry Diller is up to yet another new project. The New York Times reports that Mr. Diller is partnering with producer Scott Rubin and publishing vet Frances Coady to launch Brightline, a new venture--in the publishing business.

So more more like an adventure, really. 

The Times reports that the fledging imprint will focus first on ebooks, then expand (at some point, somehow; the details are scant) into print distribution. But rather than starting from square one, Brightline will be partnering with Brooklyn-baked ebook startup The Atavist, which has already worked through headache-inducing details like the content management system and the marketing basics.

The Atavist, meanwhile, gets the benefit of proximity to Misters Diller and Rubin, and heaven knows such a halo effect is not to be underestimated when recruiting big-name authors.

The partnership is a savvy move for both parties, as it's pretty much going to take an armored convoy to get through the Amazon-controlled waters of the ebook market. The ecommerce juggernaut boasts, according to the Times' numbers, around 65 percent of ebook sales.

Besides the partnership, though, there's still a lot of unknowns on the matter of Brightline. The company is open to hefty advances, but how the revenue share afterward works is unclear. The Times doesn't reveal any hints about editorial direction, either.

However, Mr. Rubin wanted to make one thing clear, namely that this is not an expensive way to secretly source new movie ideas so don't expect an automatic lucrative movie deal:

No author has yet been signed by Brightline, and Mr. Rudin asserted that the new enterprise was not an attempt to get an early look at books he might make into films.

“I already have access to all the books I need."

Can we hold out hope for a line of Diller Thrillers?

(Photo: Barrydriller.com)

We somehow doubt that Alki David, the irreverent prankster behind Aereo competitor (and hilariously named) website BarryDriller.com, didn't see this one coming. Today, news broke that IAC chairman and Aereo board member Barry Diller is suing both Mr. David and BarryDriller.com for using his likeness to falsely advertise the business.

The Hollywood Reporter has the complaint, which states that Mr. David is:

"Seeking to unfairly capitalize on the success of the new business venture supported by Plaintiff, Defendants devised a scheme to launch what they characterize as a competing business called 'BarryDriller.com.' "Defendants are using Plaintiff's name in their 'BarryDriller.com' business to (1) associate their service with Plaintiff, and (2) mislead the public into believing that Defendants' service has been judicially sanctioned."

Mr. Driller is seeking "injunctive relief and punitive damages," which we assume means a big fat check.

This is a delicious twist in an otherwise amusing saga, but we can't help but feel bad for BarryDriller.com's 28,000 users. Maybe they can just use Aereo now?

UPDATE:

Mr. David provided Betabeat with the following statement:

Barry Diller’s Aereo is as irrelevant as is Network Television. The only reason for having Network TV on a virtual-cable service likes BarryDriller these days is because Consumers believe it is better to have it. People want TV but they want their kind of TV not what someone thinks it should be. Hence the popularity of YouTube, Hulu et al. Our numbers clearly show that Bikini TV and BattleCam are individually more popular than the major Networks combined.

(Photo: BarryDriller.com)

If you got word that someone purchased the domain name BarryDriller.com--that's Driller, with an "r"--what would you assume you'd find therein? Reared on a steady diet of innuendo-laden Gawker posts about the IAC chairman's "Sexy All-Boy Thanksgiving" or "His Hot Gay Facebook Friend," one naturally pictures a delightful, tongue-in-cheek video series about an accomplished media mogul carousing, yacht-bound, with his young friends.

BarryDriller.com, as it turns out, is nowhere near as fun. Mr. Diller himself seems to agree, telling The Wall Street Journal, "I had hoped that if they steal my name they’d do it for something more provocative.” You and me both, mister.  

The site is actually the invention of one Alki David, the CEO of FilmOn, an online video site. He's wasting using the address to market a competitor to Aereo--a service, backed by Mr. Diller, that lets you live-stream broadcast TV.

Mr. David may have a bone to pick with Aereo. FilmOn launched a similar offering in 2010, before agreeing to a $1.6 million settlement with the major TV networks that were trying to sue it out of existence. Aereo, which is also being sued by those same networks, seems to be having better luck in court, perhaps buoyed by a $20.5 million investment round led by IAC.

Mr. David told the Journal that BarryDriller.com has more than 28,000 paying subscribers. But he admits to no animus against the IAC mogul, telling the paper that the site is an “homage to a great guy and at the same time, it’s drilling him a bit.” Oh, quit teasing.

Mr. Diller

Yesterday, U.S. District Judge Alison Nathan denied broadcasters' request for a preliminary injunction on Aereo, a service backed by Barry Diller that lets users live-stream basic channels like NBC, CBS, ABC, and PBS, all of which are suing the startup.

The plaintiffs had requested an injunction to prohibit consumers from watching programming on Aereo until the broadcast had completed airing--knocking the wind out of the whole watch-it-live proposition. But the judge's decision yesterday also offers a hint as to how other claims in the lawsuit may be decided. 

As we discussed in our feature on Aereo, CEO and founder Chet Kanojia designed the service, which relies on individual antennae per consumer, to hew to the letter of the law. Precedent in this case refers back to what's known as the "Betamax" case, which made VCRs legal, as well as the "Cablevision" case. The latter refers to a Supreme Court ruling that Cablevision was allowed to move its DVR systems to remote servers, rather than have consumers store programs they recorded to their individual cable box.

As Mr. Kanojia told Betabeat in May, “A simple logical extension to me was: this content is broadcast for the consumer, ends up in the public airwaves, is part of the broadcast legacy. So if network DVR is legal why can’t we build a remote network antenna?”

Broadcasters have called the idea that individual antennaes, also stored remotely in Aereo's warehouse, a "gimmick" and cynical ploy, arguing that this constitutes a "public performance," which requires copyright licensing. However, yesterday, the Court stated that, "faithful application of Cablevision requires the conclusion that Plaintiffs are unlikely to succeed on the merits of their public performance claim.”

The Court also noted the importance of preserving, “the expectations of parties, like Aereo, who rely on binding precedent."

In the decision, Judge Nathan said,  "[t]he overall factual similarity of Aereo's service to Cablevision...suggests that Aereo's service falls within the core of what Cablevision held lawful," adding, “[i]ndeed, in light of this Court's factual determination that each antenna functions independently, in at least one respect, the Aereo system is a stronger case than Cablevision.”

See, now this is our idea of juicy summer soap opera. Stay tuned for the appeal.