Aereo in the Supremes: A Post Mortem Post [telecom]

By FHH Law, CommLawBlog, April 23, 2014

| So the storm that had been brewing for some months -- the | long-impending Aereo argument in the Supreme Court -- has now come | and gone, and we are left to sift through what remains to try to | figure out what's next. | | We are pleased to report that, as planned, our intrepid reporters | on the Aereo beat, Kevin Goldberg and Harry Cole, attended the | argument (nearly front-row seats, thank you very much) and were | able to provide an overview of the festivities on CommLawBlog Live! | less than three hours after the gavel came down in the courtroom. | (That's just a metaphor -- Chief Justice Roberts did not appear to | wield an actual gavel.) For those of you who missed it, you can | catch a recording of the audio portion here, although you'll miss | the video of Kevin and Harry -- which is, of course, the price you | pay for not signing up for the live presentation.


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I watched the webinar that Kevin and Harry steamed yesterday, and took numerous scribbled notes. From my notes:

- Cole stated that Aereo's attorney (David Frederick) was "unbelievably good."

- Attorney Frederick repeatedly claimed that a decision against Aereo would negatively affect "cloud" storage for all other uses. But the DoJ's amicus brief specifically countered this claim. [1]

- Justices Sotomayor, Breyer, Kagan, and Roberts all asked variations of the same question: "How does Aereo differ from a cable system?"

- The issue of "static" antennas came up a few times: does Aereo assign a specific ("static") antenna to each customer, or does the customer get whatever antenna is available when he/she logs in?

- The Court was narrowly focused on the Second Circuit's 2-1 decision favoring Aereo. There was no mention of the Tenth Circuit's decision (favoring plaintiffs) or the FilmOn X case (enjoined by the DC District Court).

- The questions asked by the members of the court did not indicate any definite positions. In Cole's opinion, "the case is too difficult to call." [2]

[1] The DoJ specifically addressed this claim in its amicus brief: | [The DOJ's position] should not call into question the | legitimacy of businesses that use the Internet to provide | new ways for consumers to store, hear, and view their own | lawfully acquired copies of copyrighted works.

FFH Law cited this issue in a previous post:

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Neal McLain

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Neal McLain
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