Supreme Court Justices Express Concern Over Scope of Aereo Ruling

By Merrill Knox Comment

supreme_court_buildingWhile hearing oral arguments from attorneys representing the broadcast networks and Aereo this morning, the Supreme Court justices “appeared unsure” how to rule in the case, expressing concerns that a broad ruling could affect cloud computing companies like Dropbox and Amazon.

Bloomberg reports the justices posed questions about both the cloud computing industry and copyright violations:

Hearing arguments today in Washington, some justices suggested they viewed Aereo as violating broadcaster copyrights by using thousands of dime-sized antennas to get over-the-air signals without paying fees. Chief Justice John Roberts led the questioning, asking whether Aereo’s equipment had any purpose “other than to get around the copyright laws.”

At the same time, the hour-long hearing didn’t clearly indicate the likely outcome, as justices led by Stephen Breyer repeatedly asked whether a ruling favoring the broadcasters would imperil the cloud computing industry.

Justices also raised the issue of whether the Barry Diller-backed startup should be considered a cable service, according to Variety:

[Justices] also queried both broadcasters and Aereo’s attorneys on why the startup should not be considered a cable service, with a full slate of legal requirements including payment of royalties and retransmission fees.

From oral arguments, it was hard to read exactly which direction the high court was moving, a notoriously unpredictable prospect in copyright cases. But the case undoubtedly touched a nerve in the entertainment industry, as an array of broadcast executives, copyright lawyers and tech advocates crowded the chambers. Justice Ruth Bader Ginsburg noted that Aereo is “the only player that is paying no royalties whatsoever” for broadcast content.

>Update: Aereo has released a statement about the Supreme Court arguments.

From our perspective, the issue in the case was whether consumers who have always had a right to have an antenna and a DVR in their home and make copies of local over-the-air broadcast television, if that right should be infringed at all simply by moving the antenna and DVR to the cloud.

The court’s decision today will have significant consequences for cloud computing. We’re confident, cautiously optimistic, based on the way the hearing went today that the Court understood that a person watching over-the-air broadcast television in his or her home is engaging in a private performance and not a public performance that would implicate the Copyright Act.

We’ll be talking about all things Aereo with U.S. Law Week managing editor Tom Taylor, Internet attorney Tim Bukher and BIA/Kelsey chief economist Mark Fratrik at the TVNewser Show next Tuesday. Click here for more information and to register.