Mr. Diller

Aereo won an important legal victory earlier this week, when a judge declined to issue a preliminary injunction that would've essentially shut the TV-streaming service down until a broadcasters' lawsuit against the company is decided. Not only might the move have smothered the company in its cradle, but the ruling also bodes well for Aereo's ultimate fate in the lawsuit.

Well, now that one existisitential threat has receded, it looks like the swagger is back in the company's step.

Yesterday media mastermind and spry septuagenarian Barry Diller informed Bloomberg TV, “Within a year and a half, certainly by ’13, we’ll be in most major” markets. We like to imagine the line was accompanied by an enormous, satisfied grin.

Nor will Aereo continue hiding its light under a bushel. Mr. Diller also told Bloomberg that, “We’re going to really start marketing." And while it may seem like Aereo is all you ever hear about, despite the occasional splashy party and a demo at New York Tech Meetup, the company hasn't exactly been making the full-court press to consumers.

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.

Their argument goes that the company's mere existence is enough to threaten broadcasters' business model. From the tone of statements earlier this week, they're about ready to go looking for Aereo's plug if the judge doesn't do something, anything, to take care of this. If Aereo gets away with their over-the-air workaround, cable and satellite distributors won't be so willing to shell out for retransmission rights. And that means television may never be the same again. They do understand that sounds like a good thing, right? 

NBCUniversal executive VP of content distribution Matt Bond told the court:

"It makes little economic sense for cable systems and satellite broadcasters to continue to pay for NBCU content on a per-subscriber basis when, with a relatively modest investment, they can simply modify their operations to mirror Aereo's 'individual antenna' scheme and retransmit, for free, over-the-air local broadcast programming," Bond says in a declaration. "I know for a fact that cable companies have already considered such a model."

Don't think that won't impact you, either. Mr. Bond pointed to the $10 billion that his company invested in the rights to Saturday Night Football and suggested that couldn't have happened before the 1992 legislation that allowed broadcast stations to negotiate retransmission deals with cable companies. Mr. Bond, are you threatening to take away our professional football?

It's partly that Aereo has wandered smack into the middle of an ongoing conflict between broadcasters, who'd like money for their content, and cable distributors, who traditionally didn't have to pay for networks like ABC and don't want to start now. Two years ago, a stalemate in negotiations between Cablevision and Disney (which owns ABC) almost blacked out the Oscars for New York-area viewers, and the fighting hasn't gotten any better.

But it's also no wonder broadcasters want Aereo off the air ASAP. Just this Wednesday, Betabeat caught the company's New York Tech Meetup demo and witnessed an audience reaction that could fairly be described as ecstatic.