Government Sides With Broadcasters in Aereo Case

Classifies the system as a public performance

The government is siding with broadcasters in their legal fight with Aereo. In an amicus brief filed with the Supreme Court, the U.S. copyright office and the Department of Justice told the court Aereo has infringed on broadcast copyright and urged the court to reverse the second circuit's decision that refused to stop the service

The Supreme Court is scheduled to hear oral arguments in ABC v. Aereo on April 22.

Aereo has argued that it is not engaged in broadcasting a "public performance" of broadcast signals, but that it is merely renting its subscribers the use of a tiny antenna to pull down the signal that is streamed over the Internet.

But the Solicitor General, who represents the U.S. government before the Supreme Court, concluded just the opposite, defining Aereo's service as a public performance within the meaning of the Copyright Act.

"[Aereo] operates an integrated system, i.e., a 'device or process' whose functioning depends on its customers' shared use of common facilities. The fact that as part of that system [Aereo] uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content 'to the public.' Like its competitors, respondent [Aereo] therefore must obtain licenses to perform the copyrighted content on which its business relies," Deputy Solicitor General Edwin Kneedler wrote.

The S.G. also argued that a ruling in favor of the broadcasters would not threaten legitimate cloud storage services because they are not "public performances."

"A party who transmits a performance of a copyrighted work only to himself does not infringe the copyright because he does not transmit the performance 'to the public,’" Kneedler said. "The conclusion … should not call into question the legitimacy of businesses that use the Internet to provide new ways for consumers to store, hear, and view their own lawfully acquired copies of copyrighted works."

As the Supreme Court date nears, several parties are filing amicus briefs with the court. Cablevision, which won a court case used by Aereo to defend its system, argued that Aereo is violating copyright law because it retransmits broadcast content without a license. However, Cablevision also argued that the court should not overturn the legal foundation established in that case which has allowed cloud-based technologies to flourish.