SCOTUS Scuttles Aereo; “It’s Over”, Says Diller In Big Win For Big Broadcasters

UPDATED WITH REACTIONS: Television broadcasters can breathe a sigh of relief after the Supreme Court ruled this morning that the Barry Diller-backed service violates their copyrights when it streams their transmissions without their permission. In a 6-3 opinion, the court reversed and remanded the decision of the 2nd Circuit in the broadcasters favor. The opinion equated Aereo to a cable company, thereby equaling its transmissions of the broadcasters’ material to a public performance under the Copyright Act. That remand means the broadcasters could get the injunction against Aereo they have long been seeking. As was expected, Associate Justice Stephen Breyer wrote the decision (read it here) released this morning; he asked the most questions by far of the lawyers during oral arguments in April. Saying Aereo does not constitute a public performance, Associate Justice Antonin Scalia dissented today’s opinion. He was joined by associate justices Clarence Thomas and Samuel Ailto.

The Court today also addressed concerns raised by Aereo and others that a loss for the streaming service could have grave implications for cloud technology, among others.“Given the limited nature of this holding, the Court does not believe its decision will discourage the emergence or use of different kinds of technologies,” said the 18-page opinion.

“Today’s decision is a victory for consumers,” the broadcasters’ lawyer Paul Clement said today. “The Court has sent a clear message that it will uphold the letter and spirit of the law just as Congress intended.” Clement, a former Solicitor General, represented broadcasters during oral arguments.

This is a big loss for Aereo, which until now has prevailed in the majority of its legal battles with broadcasters including CBS, Disney, Fox, and Comcast’s NBCUniversal. On April 2, Diller sent shivers through Aereo CEO and founder Chet Kanojia and other execs when he said that the company “probably would not be able to continue in business” if it lost at SCOTUS. If Aereo had won, many industry watchers said broadcasters could lose their clout to force cable and satellite companies to pay billions for the right to retransmit their programming.

“It’s over,” Diller told CNBC this morning after the ruling was handed down. Kanojia had a different take: “We are disappointed in the outcome, but our work is not done.  We will continue to fight for our consumers and fight to create innovative technologies that have a meaningful and positive impact on our world.”

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