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Aereo vs. Broadcast TV: The Case That Could Change Everything

Who's likely to win and what’s at stake

On April 22, attorneys for Aereo and the broadcast TV networks will face off before the Supreme Court in American Broadcasting Companies Inc. v. Aereo. The closely watched case could change the course of broadcast television and determine the future of the emerging over-the-top video marketplace. With so much on the line, Aereo—fighting to stay in business—and the broadcasters that want to shut it down have enlisted the services of a couple of big-name Washington attorneys with deep ties to the high court.

The Supreme Court decision, which could come in late summer, will end two years of legal battles that began just prior to Aereo’s launch in New York. What Aereo calls a technology that gets it around the copyright law to deliver over-the-air TV stations on the Internet broadcasters call a legal gimmick and a clear violation of copyright.

As Aereo rolled out in other cities, broadcasters sued. Aereo won in New York and Boston but lost in Utah. When broadcasters petioned the Supreme Court last October to hear the case, the response of Aereo, knowing it faced an endless series of expensive lawsuits, was: Bring it on.

The question before the court Whether a company “publicly performs a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.”

What’s at stake for Aereo?
If it loses, Barry Diller, Aereo’s financial backer, has said the startup is toast. (In an interview with Adweek’s sister The Hollywood Reporter, Diller said Aereo had a 50-50 chance of winning.) Aereo’s business model relies on the court interpreting its low-cost method of delivering over-the-air signals to the Internet via tiny, personal antennas as a personal use and not a public performance of the airwaves. Operating in 11 markets, Aereo could stay in business if it paid copyright fees, but that would likely force it to charge consumers much more than the current $8 monthly fee.

What’s at stake for broadcasters?
For the nets, the case is about who can rebroadcast their over-the-air signals and how. At the moment, anyone who wants to rebroadcast television content online or via cable or satellite must obtain permission from broadcasters. A win for Aereo could change the landscape for retransmission consent between broadcasters and pay-TV providers, forcing broadcasters to experiment with new business models. Fox’s Chase Carey and other broadcasters have threatened to pull content from the air if Aereo wins. CBS’ Les Moonves said it could offer its own Internet service.

Who will win?
The broadcasters seem to have copyright law on their side. Even the government, in an amicus brief, agreed with them. Plus, the U.S. Solicitor General’s office only files when it feels strongly about a case.

REPRESENTING AEREO David Frederick
Partner, Kellogg Huber Hansen Todd Evans & Figel PLLC
Cases argued before the Supreme Court 43, including ABC v. Aereo
Win/Loss 2/3Most famous case Represented 4,500 NFL players last year against the league before district court, resulting in $765 million settlement
Clerkships Law clerk, Supreme Court Justice Byron White, 1991-92
Former position Assistant to the U.S. Solicitor General, 1996-2001
TV provider Declined to answer


REPRESENTING BROADCASTERS Paul Clement
Partner, Bancroft PLLC
Cases argued before the Supreme Court 74, including ABC v. Aereo
Win/Loss “Well above .500”
Most famous cases Affordable Care Act, 2012; defended 26 states in National Federation of Independent Business v. Sebelius
Clerkships Law clerk, Supreme Court Justice Antonin Scalia
Former positions U.S. Solicitor General, 2004-08; Acting Attorney General of the U.S., 2007
TV provider Satellite

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