If you thought that the legal dispute between Aereo and the broadcasters was combative, it paled compared with today’s one-hour hearing at the Supreme Court. In oral arguments before the nine Justices, both sides took some heavy blows, but the Barry Diller-backed streaming service definitely took one to the jaw from Chief Justice John Roberts. “Your technological model is based solely on circumventing legal prohibitions that you don’t want to comply with,” Roberts told Aereo attorney David Frederick during the presentation before a packed chamber. “There’s no reason for you to have 10,000 dime-sized antennas except to get around the Copyright Act,” he said. Added Justice Ruth Bader Ginsburg: “You are the only player so far that pays no royalties whatsoever.”
Coming after arguments from the broadcasters by former Solicitor General Paul Clement and current Deputy Solicitor General Malcolm Stewart, Frederick started off his presentation by saying “this is a reproduction rights issue masquerading as a public performance case.” The Justices didn’t seem to buy it.
Despite Roberts’ comments, Justices Sonia Sotomayor and Stephen Breyer were by far the most inquisitive during the presentation with concerns over cloud computing taking up almost as much time as the copyright issue at the heart of the lawsuit filed by an armada of Big Media companies — including CBS, Disney, Fox, and Comcast’s NBCUniversal — as well as the federal government. “I don’t understand if the decision I write for or against you will affect other technologies,” Breyer told Frederick. “It’s not your problem — but it might be,” Breyer deadpanned to a big laugh from the courtroom.
“I think the cloud was the winner today,” MPAA boss Christopher Dodd said after the hearing. “But I think the Justices see Aereo as gimmicky and want to address that.” Dodd’s comments mirrored remarks made by Clement during the presentation.
During Clement’s three-minute rebuttal at the end of the hearing, Sotomayor directly asked the lawyer about the consequences of a potential ruling. “If it’s just a gimmick, then they deserve to go out of business and no one should shed a tear,” Clement said of Aereo’s prospects should it lose at the high court. The lawyer added that if Aereo’s technology was innovative, it would persevere in one form or another regardless.
Said Frederick in a statement after the presentation: “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.”
Originally scheduled to start at 11 AM ET, today’s hearing was pushed back 30 minutes because of readings of other opinions from the bench. In the sundrenched chamber with its strategically lit red velvet drapes and engraved marble walls, almost all of the nine Justices asked questions from their high-backed chairs. As is common, the only Justice not to ask a question was Clarence Thomas, though he did take time during the presentation to whisper asides to Justice Antonin Scalia.
The court likely will rule by late June. (more…)