By FHH Law, CommLawBlog, March 4, 2014
| With more than six weeks to go before the April 22 oral argument, | the Aereo case in the Supreme Court is in what litigators refer to | as the "briefing phase" - the various parties are busy preparing | and submitting their written arguments to the Court. The | broadcaster-petitioners have already filed their brief; Aereo's is | due shortly. | | But newsworthy things are still happening. Indeed, despite the snow | storm that shut down Washington, D.C. yesterday, there were two | noteworthy developments in the Aereo case. | | First and perhaps most important, the U.S. Department of Justice -- | through its principal appellate mouthpiece, the Solicitor General -- | weighed in with an amicus brief in support of the petitioners. This | is Big News because the DOJ's opinion tends to be taken very | seriously by the Court. And the DOJ's brief reads like a | broadcaster's dream. (You can read a copy of the brief, posted by | Deadline.com, [at the second URL below - mod] -- props to | Deadline.com for tracking this down and getting it up on line so | quickly.) | | Check out DOJ's summary of its own argument: | | The proper resolution of this dispute is straightforward. | Unlike a purveyor of home antennas, or the lessor of hilltop | space on which individual consumers may erect their own | antennas . . ., [Aereo] does not simply provide access to | equipment or other property that facilitates customers' | reception of broadcast signals. Rather, [Aereo] operates an | integrated system--i.e., a "device or process"--whose | functioning depends on its customers' shared use of common | facilities. The fact that as part of that system [Aereo] uses | unique copies and many individual transmissions does not alter | the conclusion that it is retransmitting broadcast content | "to the public." Like its competitors, [Aereo] therefore must | obtain licenses to perform the copyrighted content on which | its business relies.
Supreme court amicus filing by DOJ: