Aereo Oral Argument Recap

By: Deborah Goldman

Today, the U.S. Supreme Court heard oral arguments in ABC v. Aereo. As I wrote exactly one year ago, Aereo dynamically assigns individual dime-sized antennas to subscribers so they can stream local market over-the-air broadcast programming. A long series of litigation in multiple circuits led the Supreme Court to grant certiorari in January.

Yours truly spent the night outside One First to attend oral arguments this morning. While making predictions based on oral arguments is always risky, a few common themes emerged.

Perhaps the most important take-away from today’s arguments is the importance of the cloud. While this had been emphasized by multiple amici, including CDT and CCIA (which counts Aereo as a member), the broadcasters and the Solicitor General’s office argued that a holding against Aereo “need not threaten” cloud computing. Paul Clement, arguing on behalf of the broadcasters, asked the Court “not to decide the cloud computing question once and for all today, because not all cloud computing is created equal.” However, the Justices were not convinced. Justices Breyer and Sotomayor expressed concern that the Court’s ruling could have substantial negative effects for the cloud industry.

The Court also appeared unreceptive to the argument that a ruling in favor of Aereo would likely put us in violation of our international agreements. The argument, put forth primarily by the musical and international amici, appeared to gain some traction with Justice Ginsburg, but received very little attention otherwise. When asked, Malcolm Stewart, arguing on behalf of the United States, rejected Justice Ginsburg’s suggestion that Aereo’s view of the public performance right is incompatible with international obligations.

Some other arguments appeared in this morning’s arguments as well. Justice Sotomayor began questioning by asking Clement why Aereo isn’t, and shouldn’t be, considered a “cable system” under Section 111 of the Copyright Act. Additionally, Aereo’s longstanding argument that they are simply a hardware company leasing otherwise lawful equipment out to consumers garnered considerable attention, particularly from Justice Kagan. Interestingly, Chief Justice Roberts posited that Aereo’s “technological model is based solely on circumventing legal prohibitions,” adding that this “is fine. I mean, that’s—you know, lawyers do that.”

Ultimately, it’s uncertain how the Court will decide. The only shred of clarity today’s arguments provided was that the Court is acutely aware of the broad implications their decision will have.

A transcript of today’s arguments is available here.

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