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Yesterday the Supreme Court heard oral arguments regarding the legality of the streaming service Aereo. Below is a round-up of some of the reactions from around the web:
“Your technological model,” Chief Justice John G. Roberts Jr. told Aereo’s lawyer, “is based solely on circumventing legal prohibitions that you don’t want to comply with.”
But the justices were also clearly concerned with the impact that a ruling against Aereo could have on future technological innovation.
“What disturbs me on the other side,” Justice Stephen G. Breyer said, “is I don’t understand what the decision for you or against you when I write it is going to do to all kinds of other technologies.”
Throughout the hearing, the justices and the lawyers struggled to find analogues that would help them pick through the complicated legal and technical subjects at stake. Justice Stephen Breyer invoked the image of phonographs sent through the mail to try to draw out questions of what constitutes a performance, the distribution of recordings, or the actual act of pressing play. The reference to older technology may have seemed anachronistic given the tools in question, but the question was aimed at Aereo’s contention that its consumers, not the company itself, are putting on private performances when they start hitting buttons.
One lawyer sought to persuade the Court that the cloud is falling, so to speak, while another said not to worry about it, and a third said it means nothing legally if it is only used with “a gimmick.” All three of those positions can’t be true, but the Court left little doubt that it will have to spend some time and effort exploring which one of them — if any — can be believed.
We have no doubt the justices of the Supreme Court are well versed and prepared for any copyright law, b We have no doubt the justices of the Supreme Court are well versed and prepared for any copyright law, but do they understand TV or the hows and whys it can be so frustrating sometimes? Like many of us, possibly not that well — like why HBO can’t keep its streaming service up during Game of Thrones? — which could make reaching a decision in the case between Aereo and the broadcasters seeking to put it out of business especially difficult. During today’s oral arguments Justice Antonin Scalia wondered whether the cable- and satellite-only network HBO might be picked up by Aereo’s antenna-to-internet setup. The justices were mostly on point, however, needling lawyers for the networks about a previous case for Cablevision’s cloud DVR, and how a ruling in their favor could affect cloud internet services.
Justice Sotomayor continued this line of thought and seemed to revel in citing different technologies–Dropbox, iCloud, Roku and Simple.TV were just a few of the names she mentioned over the course of the hour–and asking lawyers to make distinctions between them and Aereo. At one point she gave the example of a coaxial cable supplier and asked Clement, “How do I avoid a definition [of ‘public performance’] that might make those people liable?”
For more Aereo information, here’s my interview with CEO and founder Chet Kanojia as he prepared for his company’s visit to the highest court in the land.