Supreme Court ‘Conflicted’ Over Aereo Case

By Merrill Knox 

OLYMPUS DIGITAL CAMERAAfter hearing oral arguments from both sides this morning, the Supreme Court justices “appeared unsure” how to rule in the Aereo case, Reuters reports:

The nine justices gave little sign of support for Aereo during the one-hour oral argument, but the bigger concern appeared to be the possible broader implications of a ruling against the company.

Several justices appeared troubled about a ruling that would deal a blow to increasingly popular cloud computing services in which personal files — including TV shows and music — are stored remotely on the Internet on servers from companies such as Google Inc, Microsoft Corp, DropBox Inc and Box Inc.


Justice Stephen Breyer told the networks’ attorney, Paul Clement, that his legal argument “makes me nervous about taking your preferred route.”

The issue of whether Aereo should be considered a cable company was also raised, according to Re/code:

Some justices wondered why Aereo shouldn’t be considered the equivalent of cable company, which would give them the right to transmit TV programming — but would also require them to pay for it. And others argued that Aereo seemed primarily designed to evade copyright law.

[…] Aereo says it is making it easier for consumers to watch private broadcasts of TV shows while broadcasters say the company is really offering public broadcasts of the same shows to thousands of people. Legally, it’s an important distinction because copyright law protects private broadcasts but not public ones.

Looking at a description of Aereo’s business it’s hard to see how they aren’t a cable company, said Justice Sonya Sotomayor. “I read it and say why aren’t they a cable company?” she said.

>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.