UPDATE, 12:48 PM: Looks like three isn’t a crowd for the Supreme Court when it comes to the upcoming Aereo hearing. The high court has decided to let the Solicitor General’s office participate in the one-hour oral arguments session between Aereo and the broadcasters Tuesday in Washington D.C. “Motion of the Deputy Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED,” said the SCOTUS yesterday. The granting of the motion comes more than a month and a half after the federal government’s top legal office filed a brief supporting the broadcasters in their showdown with the Barry Diller-backed streaming service. That was followed by the Solicitor General’s office requesting the time to directly make its points. The broadcasters have given the federal lawyers 10 minutes of their time. Though the broadcasters have a couple of former Solicitors General on their team, the current Solicitor General will not be involved; before he took his present post, Donald Verrilli Jr. argued Hollywood copyright cases before the SCOTUS and hence has recused himself. The likely candidate will be Deputy Solicitor General Edwin Kneedler, who submitted the March 13 motion.
PREVIOUS, MARCH 13 PM: Last week, the Solicitor General’s office entered the Aereo legal fray with a dense brief filed at the Supreme Court on the side of the broadcasters. Turns out that was Round 1 for the government in this potentially game-changing case. This week, the Obama administration asked the court if it could argue its point of view directly before the Justices at the April 22 hearing on the case. While not unprecedented, the amicus curiae request is unusual and a sign of just how high the stakes are in the case between the broadcasters and the Barry Diller-backed streaming service. “Because the Court’s decision in this case will likely address important questions about the scope of the public-performance right in the context of novel technologies for transmitting and viewing copyrighted audiovisual works using the Internet, the United States has a substantial interest in presenting its views on the question presented,” said Deputy Solicitor General Edwin Kneedler in a motion (read it here) filed with the SCOTUS on Wednesday. The Court has not yet responded, but the broadcasters have given the government 10 minutes of their one-hour block of time before the Justices in which to make their case — literally and figuratively.
After what has been a multi-jurisidictional trench war, the broadcasters asked the High Court to review an April 1, 2013 ruling by the U.S. Court of Appeals in New York that confirmed a District Court decision and rejected their request for a preliminary injunction against Aereo. The broadcasters are on board with a heavyweight like Kneedler or someone else from the SO’s office appearing at the hearing, but if the Court does grant the motion, it won’t be Solicitor General Donald Verrilli Jr. making the argument — both he and the Principal Deputy Solicitor General are recused in the Aereo case, as is Justice Samuel Alito. Before he took up government service, Verrilli was a partner at Jenner & Block where he argued Hollywood’s copyright case before the Supreme Court in MGM Studios, Inc. v. Grokster. Former Bush II administration Solicitor General Paul Clement is the head attorney for the broadcasters in the SCOTUS hearing.