Aereo vs. broadcasters: Start of Supreme Court review is inconclusive

After day one, it's too close to call: Aereo and a group of TV broadcasters faced the Supreme Court in the first day of hearings around whether Aereo's service violates copyright laws.

At the crux of the issue is whether the way Aereo's technology is being used constitutes a public or a private performance.

Attorney David Frederick, Aereo's counsel, reiterated the provider's public statement that the Court's ultimate decision will have "significant consequences" for the cloud computing industry. He also put forth that Aereo's streaming service is just a new way for a consumer to pick up over-the-air signals by antenna and watch them, just as they always have.

"From our perspective, the issue in the case was whether consumers who have always had a right to have an antenna and a DVR in their home and make copies of local over-the-air broadcast television, if that right should be infringed at all simply by moving the antenna and DVR to the cloud," Frederick stated outside the chambers following the hearing, in a press release provided by Aereo.

Paul Clement, lead attorney representing the broadcasters, held fast to the broadcasters' argument that public performance rights needed to be protected, and that Aereo was violating that part of copyright law.

"The justices understood the technology," Clement said outside the Supreme Court after the hearing, according to a Broadcasting & Cable article. "They understood the stakes in the case. And they were focused principally on the interpretation of the statute. We conveyed to them a relatively straightforward position, which is that a service cannot provide live TV over the Internet to thousands of paying strangers without engaging in a public performance."

Justices' questions to both sides revolved around that issue, and also touched on why Aereo should or should not be considered a cable service. The justices also expressed concern over how a ruling against Aereo might affect the cloud services industry and the providers deeply invested in it, such as Apple (NASDAQ: AAPL) with its iCloud service.

Chief Justice John Roberts asked whether Aereo's equipment had any purpose "other than to get around copyright laws," according to Bloomberg. But he also said that Aereo's service could be viewed as similar to a consumer going to the nearest Radio Shack to buy their own antenna and DVR and make copies of broadcast programming, The Wall Street Journal reported.

The hour-long hearing signals just the start of this review. A ruling in the case will likely not be made before June.

Will Aereo prevail? That is hard to tell. Aereo won in most lower court decisions regarding the legality of its service, but in March it lost a 10th Circuit Court of Appeals case filed by four Utah TV stations, forcing it to shut down service in Salt Lake City and Denver. And the Court's careful look at how the case ties into cloud computing may not save the service, if the justices figure out a way to rule against Aereo without gutting a 2008 decision regarding Cablevision's remote DVR service that helped drive growth of the cloud industry.

For more:
Broadcasting & Cable has this story
WSJ has this story (sub. req.)
Bloomberg has this story
- read Aereo's post-hearing statement
- and a transcript of the opening arguments (.pdf)

Related articles:
Broadcasting is about to change, regardless of Aereo lawsuit's outcome
Aereo CEO Kanojia warns of 'chilling' consequences for cloud industry
Aereo shuts down in Denver and Salt Lake City

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