The Supreme Court heard the oral arguments in the Aereo case yesterday, it has received all the briefs, and now we all just wait for a decision – to probably be released late in June before the Court’s summer recess. The transcript of yesterday’s oral argument has been released and is available here. It makes for interesting reading, as the questions from the Court seemed to be dubious of Aereo’s claims that it can retransmit the signal of a broadcast television station over the Internet, to the public for a fee, without the consent of or any payment to the stations. While dubious about the Aereo service, the Court was also concerned about the potential impact of any decision against Aereo on cloud services and even on other distributors of media content. Lots of issues came up during the course of the argument, and it will be very interesting to see how the Court resolves these in its final decision. Keep reading, and I’ll make my prediction.
While Court arguments can never be relied on to predict the decision, they can at least provide insight into the questions that the Justices are considering. One question that recurred throughout the argument was raised by Justice Sotomayor in the first question that was asked – why wasn’t Aereo a cable system under Copyright law, as it retransmits television programming to consumers for a fee? Counsel for both parties contended that it was not a cable system, though neither gave an entirely satisfactory reason for that position. The definition of a cable system in Section 111 of the Copyright Act, which governs the compulsory license granted to cable systems to retransmit over-the-air TV stations and all of the content that they broadcast, defines a “cable system” as:
a facility…that in whole or in part receives signals transmitted or broadcast by one or more television stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals by wires, cables, microwave or other communications channels to subscribing members of the public who pay for such service.
As the Justices said, this sure looks like what Aereo is doing. As we have written before, the FCC is looking at whether an IP based video-programming service should be classified as a cable system. It might well have been easier for the attorney representing the broadcasters to concede that Aereo was very much like a cable system, as if it was so classified, it would have proved the argument that they broadcasters were trying to make – that its retransmission of television programming was a public performance that required the permission of the broadcaster.