DOJ Amicus Against Aereo Seen Influencing High Court

The U.S. Solicitor General’s urging the Supreme Court to rule against Aereo while preserving prior case law that allows cloud computing is likely to have an influence on the high court’s final decision on the streaming-TV service, said several attorneys in interviews Tuesday. “It’s pretty clear that briefs from the SG’s office are influential,” said Pillsbury broadcast lawyer John Hane, who isn’t connected to the case.

The DOJ amicus’s attempt to draw a line between Aereo’s service and the use of cloud computing makes it more likely that the justices will consider the implications for the cloud of whatever conclusion they reach in the case, said attorney Jonathan Band, who filed an amicus brief in the matter on behalf of the Center for Democracy and Technology, CTIA and other associations also arguing for the preservation of cloud computing. Aereo’s use of unique copies and individual transmissions for each user “does not alter the conclusion that it is retransmitting broadcast content to the public,” DOJ said. “Like its competitors, Aereo therefore must obtain licenses to perform the copyrighted content on which its business relies."

Aereo has argued the case is “critically important” for cloud computing because a sufficiently broad ruling overturning the Cablevision decision by the 2nd U.S. Court of Appeals and redefining what constitutes a public performance could have severe implications for cloud computing services that allow users to store movies or music online and then transmit them through various devices, said Band. If a Supreme Court ruling against Aereo treated multiple individual downloads of a song or show from the same service into one public performance instead of several private ones, such services wouldn’t be able to operate under current copyright law, Band said. “It all depends on how far a decision goes.” In Cablevision, the 2nd Circuit ruled for the cable operator and against cable networks that opposed the remote-DVR service.

Online music “lockers” and other cloud services are different from Aereo’s streaming of local TV broadcasting because in most the content involved has already been “lawfully acquired” by the users by paying a subscription fee or purchasing the rights to download the content, said DOJ. Aereo “performs a wholly different function” since it doesn’t pay retransmission fees for its content, DOJ said. Aereo lets users “gain access to copyrighted content in the first instance -- the same service that cable companies have traditionally provided,” DOJ said. That difference should mean a decision that Aereo infringes copyright shouldn’t “threaten the use of different technologies that assist consumers in hearing or viewing their own lawfully owned copies,” DOJ said Tuesday (http://bit.ly/1i5q6Jp).

"Aereo’s wasteful free-riding stands in marked contrast to the genuine innovation being achieved within the framework of the law by services like Netflix and Hulu, as well as by broadcasters,” said NAB’s amicus. “Reaffirming the role of copyright protection for free, over-the-air broadcasting will not harm innovation.”

Cablevision argued in its amicus brief that Aereo is violating copyright but blamed broadcasters’ overly broad arguments for endangering cloud computing. “Instead of focusing narrowly on the lawfulness of the Aereo service, the broadcasters appear to be asking the Supreme Court to undo decades of federal copyright law precedent and overturn the legal foundation on which cloud-based technologies have flourished,” Cablevision said.

The Supreme Court “should avoid interpretations that would cast a pall over wide swaths of the modern technological landscape, including the burgeoning cloud computing industry.” said Band’s amicus brief for CDT, which was cosigned by CTIA, USTelecom and other groups. “Adopting such an overly broad approach to the public performance right would call into question a variety of established and mainstream services,” said the CDT brief. “It could impair technological progress by establishing an irrational legal preference for local technologies over networked ones."

A DOJ amicus in support of broadcasters is “big news because the DOJ’s opinion tends to be taken very seriously by the Court,” said Fletcher Heald appellate and broadcast attorney Harry Cole in a blog post Tuesday (http://bit.ly/1kVZ2hq). “The DOJ’s brief reads like a broadcaster’s dream.” DOJ’s opinion on a Supreme Court case can be “rather persuasive,” said Wells Fargo analyst Marci Ryvicker in an email to investors. “We would characterize the strong language coming out of this amicus brief as a significant positive in the broadcasters’ legal fight against Aereo.”