Remember our old friend Aereo, the service that records and streams over-the-air TV programming to local-only subscribers for a small fee? Broadcasters are upset that Aereo is making viewers pay to watch free OTA TV. No, scratch that. Broadcasters are upset that Aereo is providing a way for some people to stop paying broadcasters (through retransmission consent fees) to watch free OTA TV.

As long as Aereo keeps winning in preliminary injunction cases in US District Court cases, it can continue to survive and expand until the matter is decided in a full trial. And then until that trial’s results are appealed and re-appealed to the US Supreme Court. A few weeks ago, broadcasters attempted to shorten that process by requesting that the Supreme Court consider the case this year. That request has brought out a lot of amicus briefs from everyone all the way down the money tree. ASCAP, The Media Institute, the Screen Actors Guild and other Hollywood unions have joined in urging the Supreme Court to slap down Aereo.

This week, the National Football League and Major League Baseball filed their anti-Aereo amicus. As reported in Multichannel News, they wrote, “If copyright holders lose their exclusive retransmission licensing rights and the substantial benefits derived from those rights when they place programming on broadcast stations, those stations will become less attractive mediums for distributing copyrighted content.” And the leagues threatened to move their games to cable TV channels which aren’t available with Aereo.

This is goofy for at least a couple of reasons. The first reason is those sports leagues have already begun moving their games to cable channels. Unless you live in New York or Chicago, when was the last time you saw your local baseball team on OTA TV? Except for a scattered handfull, those games are already gone. The NFL hasn’t done as much yet, but it moved Monday Night Football, a cultural ritual for over 40 years, from OTA to ESPN, and its expanding set of Thursday night games are on the NFL Network. For the second this is goofy, consider who’s watching those games – viewers in their home markets. Viewers who could plug in an OTA antenna and probably watch for free anyway.

(The NFL says it’s concerned that the court case could open the door to out-of-market viewers and thereby undermine its Sunday Ticket subscription service. I had speculated that this was the main worry with nimbleTV’s early offering of New York City local channels to anyone who wanted to pay for them.)

It’s all about the money. If broadcasters get less retransmission cash, then they won’t have as much to offer when it’s time to bid on rights to sporting events. Fewer bidders means a lower contract price for the winner.

Yesterday at a Bloomberg conference in Chicago, Aereo financier Barry Diller summed up the NFL and MLB’s announcement pretty well. He said, “They are just making noise.”

Second-generation Simple.TV device

Two small boxes made for recording and streaming over-the-air TV hit the news recently. They both sound interesting, though I’m unconvinced that they’re better than a couple of alternatives.

Simple.TV is now taking pre-orders for its second generation DVR. The newest version includes dual tuners, apps for iOS, Android and Roku, and a “Download to Go” mode for offline TV viewing. You’ve got to provide your own hard drive, and for a remote control you have to use an app on your phone or other mobile device.

If you’ve ever used a DVR, you know that an important benefit is browsing future TV listings and scheduling recordings to watch later. (Simple.TV’s new device will pull its data from TitanTV.com, my favorite source of programming information.) In free service mode, the Simple.TV will only be able to record what’s on now, and it will only be able to stream it across its local network. Subscribers to Simple.TV’s Premier service (about $60/year, $150 lifetime) also get the ability to schedule recordings in advance using a full program guide, plus unlimited global streaming for up to five users.

The Tablo sounds remarkably similar. According to its Indiegogo campaign page, the Tablo device is designed to stream OTA channels to HDTVs and devices, especially tablets. Just like Simple.TV, the Tablo requires you to add your own hard drive and uses an app on your mobile device as its remote control. The Tablo streams globally, just like a subscribed Simple.TV. And the Tablo will require a subscription of about $50/year, according to Engadget’s Tablo review.

Compare those costs to two other alternatives I’ve described here before. First, a Windows Media Center computer costs maybe $200 to put together, and its guide data is free. Side benefits: Also provides access to any video programming available over the internet. Probably plays DVDs and local video files. Also includes full computer, useful for sending email and reading blogs. Drawbacks: Microsoft might stop providing free guide data one of these years. Form factor is often unwieldy, and typically requires more electricity. Adding streaming or even a good remote isn’t that easy.

Second, consider an Aereo subscription, currently $8/month. With no upfront cost, you get the same functionality as the Simple.TV or Tablo. Side benefits: Works even where OTA antenna placement is impractical. No device to plug in or place on a shelf. Includes Bloomberg. Easily streams to lots of device types. Drawbacks: Requires third-party device to stream to most TVs. Only available in certain TV markets. Won’t stream outside of home market. Might not be legal.

That question of Aereo’s legality continues to gather amicus briefs as it heads towards a possible Supreme Court decision. More about all of that in tomorrow’s column. And later, I owe you a review of the Roku 3, which does a lot of things really well.

When it comes to online TV viewing, Aereo and FilmOn get all the headlines, partly because they also get all the lawsuits. Our old friend nimbleTV, on the other hand, stays supremely quiet, content for now with its single programming point of presence and its unusual relationship with Dish Network.

So I found it remarkable today when nimbleTV added over-the-air digital subchannels from New York City to my package. (Remember that I only get NYC locals because I have a NYC mailing address.) Normally, I receive the NYC locals exactly as Dish delivers them; for example, when Dish upgraded WNYE from SD to HD, so did nimbleTV’s version.

We still don’t know exactly how nimbleTV retransmits its Dish channels to its subscribers. My best guess is that nimbleTV records every program from every channel it receives, then streams a copy of that to every subscriber who requests it. If that’s true, and if Dish and nimbleTV have an agreement for such virtual Dish subscribers, that all makes sense.

So how can nimbleTV add these extra OTA sub-channels that it can’t get from Dish? Well, I know that nimbleTV’s offices are on a 12th floor in Manhattan, and when I was in a hotel room about that high, I could pick up those same sub-channels with a simple OTA antenna. (What, don’t you pack one?) In the absence of any direct knowledge, my guess would be that nimbleTV has hooked its own OTA antennas into its content retransmitter. For the reason why, I’d guess that after watching Aereo and FilmOn connect their subscribers to NYC OTA antenna banks, nimbleTV figured that it was fair game.

As we teeter on this potentially unstable pile of guesses and theories, let’s try to add just one more. If all that I supposed happened to be true, then local broadcasters would probably pounce on nimbleTV because, according to these guesses, each nimbleTV subscriber probably isn’t directly connected to an OTA antenna Aereo-style. So that means that I’m probably wrong about this logic problem somewhere along the way, but at least I showed my work.

Mind you, I do enjoy these OTA sub-channels, although they might not be available to me for long. A worker there told me that nimbleTV was just “running a test with our platform”. But as I type, those channels are still there. Update: Between the time I posted this and when I tweeted its link, the sub-channels were gone again. Let’s see whether they return.

One of these days, FilmOn is going to win a case in court, but it probably won’t be today. Washington DC District Court Judge Rosemary Collyer slapped down FilmOn’s request to be allowed to stream over-the-air TV in Boston. Her earlier ruling that bans FilmOn from carrying OTA TV without permission still applies everywhere but in the New York-based Second District.

This chapter of the FilmOn saga began last Thursday, Oct. 10, when Boston District Court Judge Nathaniel Gorton denied broadcasters’ request for a preliminary injunction against Aereo, allowing it to continue to stream OTA TV in Boston. Within hours, FilmOn founder Alki David announced that he would “defy” Collyer’s earlier injunction and begin streaming major network stations from Boston.

Yesterday, FilmOn officially requested that Collyer revise her order to reflect the Boston court’s finding. Tim Bukher at LawTechie.com saw this as a slam dunk. “It is fairly likely that Washington will accede to FilmOn’s request. If it does not, FilmOn could just sue for declaratory judgment in Massachusetts nullifying Washington’s injunction within its borders,” Bukher wrote.

Instead, Collyer responded today with what I would consider a worst-case scenario. Not only did she refuse to modify her order, Collyer also asked FilmOn why she should not hold it in contempt for streaming Boston TV stations before her ruling. According to Multichannel News’ John Eggerton, “FilmOn countered that was only an antenna test.”

As of this writing, the Big Four network stations in Boston are no longer available on FilmOn, but it’s still carrying Boston’s PBS, CW, and ion affiliates. (Probably still testing those antennas.) And as of now, FilmOn is still looking for a US court that will give it a win.