With just days to go before they meet their Aereo foes face-to-face at the Supreme Court, the broadcasters this week took one last swipe at what they claim is the “blatant and unapologetic copyright infringement” by the Barry Diller-backed streaming service. “Aereo is in the business of retransmitting performances of the copyrighted works of others to the public for a profit,” said bluntly in a final reply brief filed by Disney, CBS, NBC, Fox and the other plaintiffs on April 14 with the SCOTUS (read it here). Aereo and the broadcasters are set to present their respective oral arguments in a 1-hour hearing before the High Court on April 22. In their March 26 response to the broadcasters’ February 24 filing, Aereo insisted that they are not engaged in public performance of copyrighted works. The company also said “this Court should not rewrite the Copyright Act in an effort to protect petitioners from lawful and logical advancements in technology or from the economic consequences of their transmitting works for free over the public airwaves.”
With the previously recused Judge Samuel Alito now joining the case the court docket revealed today, the stakes have gotten higher for all concerned, as it is impossible for the SCOTUS to have a tie on the matter. Alito likely did not previously participate in any of the conferences or other matters involving the case at the High Court because he has owned, and perhaps still does own, stock in Disney. Guess that”s been dealt with now as he’s in with the other Justices. As it stands, Alito or no Alito, a decision is expected on next week’s hearing sometime in the early summer. Either way, someone’s eventually going to hear something they won’t like.
Between the parties themselves right now, let’s just say the broadcasters weren’t picking up what Aereo was putting down. “Aereo’s policy arguments are no more persuasive than its legal arguments, as neither can refute the commonsense conclusion that Aereo does exactly what Congress enacted the transmit clause to prevent: It transmits performances of copyrighted works to the public without seeking authorization from or providing compensation to copyright holders,” the petitioners 32-page filing said.
“Aereo is more like a copy shop that provides access to a copy machine fully pre-loaded with copyrighted works ready to copy at the push of a button,” the brief from former Solicitor General Paul Clement and the broadcasters legal team added. “The purveyor of such a machine could not avoid liability because the user must push the button. That is true regardless of whether the technology for making the copies is located in the copy shop, the user’s home, or ‘the cloud’”
The ever nebulous cloud computing side of this aside, the brief this week is the latest is an almost unending stream of legal back and forth since Aereo first launched in February 2012 in NYC. On October 11 last year Disney, CBS, NBCUniversal, WNET, Fox, and Univision rolled the dice and petitioned the SCOTUS to review an April 1, 2013 ruling by the U.S. Court of Appeals in New York. That particular ruling upheld a previous District Court decision and rejected the broadcasters’ request for a preliminary injunction against the tech company. Even though the matter is still before the lower court, the Justices agreed on January 10 to hear the case. Earlier this month, in what must have been sweet music to the broadcasters’ ears, Diller said Aereo “probably would not be able to continue in business” if it struck out at the SCOTUS.
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