Aereo will have tough time proving its case, legal experts say

Aereo is going to have a hard time proving its right to exist when takes its case to the Supreme Court April 22, according to legal experts asked to handicap the proceedings. That's because, in addition to broadcasters who have from the start objected to the company's use of their free over-the-air signals, the U.S. Solicitor General and Copyright Offices also oppose Aereo.

"I think the majority of the court will be skeptical of Aereo's position and thus likely to rule in favor of the broadcast-petitioners," Pratik Shah, of the law firm Akin Gump told the Hollywood Reporter.

The case revolves around Aereo's right to pluck over-the-air broadcast signals and redistribute them to subscribers who pay $8 to $12 a month for an Internet service over TVs, PCs or connected mobile devices. The broadcaster argue that the content is copyrighted and that they should be paid fees similar to the retransmission fees they receive from pay TV operators in the cable, satellite and telco space.

So far, the broadcasters have been on the short end of that argument, losing in federal court in Manhattan and in the Second Circuit Court of Appeals. Their last gasp—and if they win, Aereo's last gasp—is now in the hands of an eight-member Supreme Court where Justice Samuel Alito has recused himself.

The tricky part is the definition of copyright, Temple University cyberlaw specialist David Post told the publication.

"Nobody can make a good argument. Wherever you go, you leave a piece of the puzzle broken on the ground," he said, claiming that Congress "really messed up this statute."

The biggest problem for Aereo, in fact, might be its business case which could be seen as an end-around the broadcasters.

That "could well strike the justices as too clever by half," Shah said. "It will be important for Aereo to provide a convincing counter-narrative to that of a clever circumventor. It needs to persuade the court that it is precisely the type of innovator—vital to our modern technology economy—that our laws should be protecting from stifling legal threats by established media giants desperate to retain control of their age-old broadcasting dominance."

The case is being closely watched, of course, by the pay TV industry which pays increasingly high fees to carry broadcast content. Aereo CEO Chet Kanojia has already conceded that the Supreme Court appearance will be a do-or-die situation for his company.

"If we don't succeed, despite our best efforts and the good law being on our side, it would be a tragedy. But it is what it is," he said during a Bloomberg appearance.

For more:
-see this Hollywood Reporter story

Related articles:
Aereo's Kanojia: We either win or disappear
Aereo setting up shop in Google Play store|
Aereo CEO wants to sell cable operators a cloud-based DVR for $10 per sub
ACA goes to bat for Aereo in Supreme Court filing

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