One of the most anticipated cases of the term was argued earlier this week before the Supreme Court -- ABC Inc., et al., v. Aereo, Inc.
Aereo charges subscribers a small monthly fee to watch television programming (live or recorded) on their mobile devices. The service works by retransmitting content to subscribers over the Internet using individual dime-sized antennas.
A group of television broadcasters including ABC, NBC, Fox, and CBS, filed a complaint in federal court claiming that Aereo's business violates their performance rights under copyright law. They sought a preliminary injunction, which the district court denied.
2nd Circuit Analysis
On appeal, the Second Circuit ruled for Aereo, based on its own precedent in Cartoon Network LP, LLLP v. CSC Holdings, Inc., which the court found was not materially distinguishable. The court characterized the performances as private, not public, because Aereo's "system uses thousands of individual, dime-sized antennas that enable subscribers to make their own purportedly 'unique' copies of the programming for retransmission back to themselves."
The Second Circuit later denied a motion for rehearing en banc, and the Supreme Court granted certiorari. The question presented is "[w]hether a company 'publicly performs' a copy-righted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet."
On Tuesday, the Supreme Court heard oral arguments in the case. One thing was clear: There were issues the Court was considering beyond the effect a ruling would have on Aereo -- the fate of cloud computing was up for debate.
One look at the transcripts of the oral arguments shows that the Justices wondered "whether a ruling against Aereo would more broadly imperil cloud-computing technologies that allow consumers to remotely store content such as video and access it through the Web," reports Bloomberg.
The lines have been drawn. Cloud computing companies such as Google, Yahoo, Mozilla, and Microsoft submitted an amicus brief in support of Aereo, while the DOJ submitted a brief in support of the broadcasters. Though we don't know how the Court will rule, one news source noted that, "When cloud computing was discussed -- Breyer brought it up repeatedly -- it seemed to be with an eye towards how a solution wouldn't damage other companies, not Aereo," according to Ars Technica. Perhaps the Court will save the cloud, but find a way to carve Aereo out of it.
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- Aereo's Tiny Antennas Score Big Win in 2nd Circuit (FindLaw's U.S. Second Circuit Blog)
- Television Broadcasters Not Happy with Aereo; Petition for Cert (FindLaw's U.S. Second Circuit Blog)
- Supreme Court Grants Cert in Aereo and Argentina Cases (FindLaw's U.S. Second Circuit Blog)