The big boys came out today on the side of the broadcasters in their upcoming appearance in front of the Supreme Court in the Aereo case. The solicitor general’s office put the Obama administration solidly in the anti-Aereo camp with a 40-page amicus brief (read it here) filed with the SCOTUS today. The broadcasters say that Aereo infringes on their copyrights by streaming their over-the-air signals without licenses or compensation. Aereo says that it simply leases out antennas and technology that consumers can already use to watch broadcast TV for free.
“The proper resolution of this dispute is straightforward,” the brief states. “Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas … respondent does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, respondent 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 respondent 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 therefore must obtain licenses to perform the copyrighted content on which its business relies. That conclusion, however, 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.”
The high court agreed in January to hear the case, and briefs from the broadcasters were due on February 24 and today. Aereo must submit its response to the petitioner’s brief by March 26 and send in an amicus curiae brief of its own by April 2.
Citing the landmark 2005 ruling in MGM v. Grokster, the government’s friend of the court brief reads: “ ‘[T]he administration of copyright law is an exercise in managing the tradeoff’ between ‘supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.’ This case implicates these two competing values. On the one hand, the transmission of a performance of a copyrighted audiovisual work to the public is copyright infringement, regardless of the technical details of the ‘device or process’ by which it is carried out. … On the other hand, members of the public may legitimately acquire and use physical equipment (e.g., an improved television antenna) that enhances their ability to receive broadcast programming, and may privately perform their own lawfully acquired copies of copyrighted works.
“Each of these principles is valid so far as it goes, and the parties invoke one or the other of them in support of their competing characterizations of respondent’s activity. Petitioners contend that respondent, like the cable companies whose activities Congress sought to regulate n in the 1976 Copyright Act amendments, retransmits broadcast television signals to the public. Respondent, by contrast, describes itself not as a retransmitter, but as a provider of physical equipment through which its subscribers acquire broadcast programming and transmit it to themselves over the Internet.”
The brief comes from the office of Solicitor General Donald Verrilli, Jr., though he recused himself, and the U.S. Copyright office.
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