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Aereo's Fight For Life: Supreme Court Raises an Eyebrow

The scrappy, 115-person NYC company delivered its plea to the high court Tuesday. Justices raised questions illuminating their awareness of the harm to cloud computing a broad ruling could bring.
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The Supreme Court stressed Tuesday the importance of protecting cloud-computing services from being unintentionally affected by their potential decision during arguments in a civil case filed by a coterie of major broadcasters against the scrappy New York City-based TV-over-the-Internet startup Aereo

The nine justices asked questions that seemed more concerned about the fate of companies such as Box and Dropbox than that of the company in question, Aereo, according to Re/code.

Lawyers representing the broadcast consortium, which included ABC/Disney, CBS, NBC, and Fox, presented the case that Aereo, which uses tiny antennae to pick up broadcast signals before streaming them to subscribers' Internet-connected devices, is no different from cable and satellite companies that are required to pay hefty fees to rebroadcast their shows. (Aereo uses online cloud storage to stream and save programs.)

The question at hand, according to the brief by the broadcasters to the court, is: "Whether a company 'publicly performs' a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet."

In the brief filed by Aereo, the question of public performance is presented, but what Aereo does is explained differently, as "supplying remote equipment that allows a consumer to tune an individual, remotely located antenna to a publicly accessible, over-the-air broadcast television signal, use a remote digital video recorder to make a personal recording from that signal, and then watch that recording." Aereo presented itself as, basically, an antenna-rental service.

"Some justices wondered why Aereo shouldn’t be considered the equivalent of a cable company, which would give them the right to transmit TV programming--but would also require them to pay for it," Peter Kafka and Amy Schatz write on Re/code. "And others argued that Aereo seemed primarily designed to evade copyright law."

Earlier this week, Gordon Smith, the president of the National Association of Broadcasters, told The Washington Post: "Quite simply, Aereo takes copyrighted material, profits from it, and does so without compensating copyright holders."

It's not the first time the Supreme Court has decided the fate of a method for TV viewing. In 1984, the big media broadcasters appealed to the nine court justices to stop use of Sony's TV-recording device, the Betamax. The court ruled 5-4 that the sale of Betamax machines--which let individuals record shows for viewing or re-viewing later--did not constitute copyright infringement.

The significance of the precedent of the Betamax decision is up for debate. As Reuters reports, the group of broadcasters don't mention the 1984 case at all in their main brief while Aereo's brief cites it 12 times.

Aereo, backed by Barry Diller's IAC/InterActiveCorp who helped found the Fox broadcast network, does not pay the broadcasters for content the way cable companies do. 

Reporters at the court Tuesday tweeted hints at how the justices' lines of questioning might indicate their opinions on Aereo's legality.

Oral arguments in the case began at 11 a.m. in Washington, D.C. Stay tuned for updates.

 

IMAGE: Steven Brahms
Last updated: Apr 22, 2014

CHRISTINE LAGORIO-CHAFKIN | Staff Writer | Senior Writer

Christine Lagorio-Chafkin is a writer, editor, and reporter whose work has appeared in The New York Times, The Washington Post, The San Francisco Chronicle, The Village Voice, and The Believer, among other publications. She is a senior writer at Inc.




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