Aereo Oral Arguments

Yesterday, the Supreme Court heard oral arguments for American Broadcasting Companies, Inc. v. Aereo Inc. (or the Aereo case).  I’ve covered the specifics of the Aereo case a few times at this point, so instead I’ll focus on what the justices said and what that potentially means for the case.  

Not surprisingly, a good deal of the justices’ questioning fell on Aereo’s technical aspects.  A lot of how the Supreme Court rules hinges on whether Aereo’s system infringes on the public performance rights in copyright law, which allow for the rights holder to control public performances of their work.  In the Aereo’s case, this means that the television companies (and the various other companies that own the rights to various television programs) can claim infringement if the Court feels that Aereo’s retransmission and storage of recorded programs is not private.  Chief Justice Roberts, for example, expressed his notion that Aereo was simply attempting to engineer around Cablevision’s holding and (according to SCOTUSBlog) the rest of the bench appeared to share this sentiment.  Ginsberg, in particular, seemed rather put off by the fact that Aereo is avoiding retransmission fees through their business model.  Sotomayor explicitly compared Aereo’s services to Netflix and Hulu, adding that those services have to pay rights holders for their content.   

However, the Court appeared to be very cautious about any unintended consequences in various burgeoning technological fields.  Aereo’s technology involves cloud storage and streaming technology, and the justices seemed to worry that their ruling could negatively impact a number of other services that utilize similar technology to different ends (iCloud and Dropbox got specific mentions in that regard, by Justice Sotomayor).  This represents a legitimate concern in the case, given how some of these services (particularly Google Music or any cloud storage service) rely heavily on the Cablevision case for their legal underpinnings.  The legality of services like Google Music and Dropbox becomes much more tenuous without Cablevision (and its holding that an item stored remotely on a company’s servers can still be protected from copyright liability as long as it only has an intended audience of one).  The Justices quite wisely recognized that aspect of the case, and appeared to spend quite a bit of time hashing out these issues with both parties’ attorneys.

As predicted, the Supreme Court’s ruling will likely hinge on how they choose to interpret Cablevision.  There was a rather interesting exchange between the two sides attorneys, where both attorneys pointed out that the Court would likely have to rule in Aereo’s favor if they viewed the end user as being the one who “performed” by selecting the particular program to view (this was obviously something of a concession on the broadcasters’ part).  Basically, the attorneys both said that if the Court views the end user as being the one performing the copyrighted work through their decision to play back a certain show or file as what constitutes a “performance” under Cablevision, then that performance must be private.  Such a ruling would provide greater clarity without altering the current precedent substantially, which appears to be a goal of the justices given their questioning.   

 Now, predicting Supreme Court rulings based on oral arguments is foolish.  The oral arguments only provide insight into what the justices think about the particular issues surrounding the case, as well as give them a chance to poke and prod the attorneys to see if the legal arguments in the briefs hold up under scrutiny.  However, there appear to be two takeaways from these oral arguments.  First, the justices appear to possess a degree of skepticism that Aereo’s service does not infringe on copyright law.  Second, they appear to want to avoid harming other services that might utilize cloud computing or streaming technology.  This might mean that the justices will try to construct a narrow holding that states that Aereo violated copyright law while otherwise leaving the Cablevision precedent untouched.  The justices may also decide that such a narrow ruling is impossible, and hold in Aereo’s favor as a result.  There may also be no solid holding, particularly since Justice Alito opted to recuse himself.  It should be interesting to see what the justices decide upon.


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