Aereo Decision Seen Going Down to Wire on Supreme Court’s Calendar

Although there are just three remaining opinion dates this term for the U.S. Supreme Court to issue a decision in the Aereo case, those following the case told us they aren’t surprised a decision hasn’t yet been issued. Oral argument in the case was held April 22 (CED April 23 p1). “It was one of the last cases argued and it’s clearly a difficult case,” said Fletcher Heald copyright attorney Kevin Goldberg, who is not connected with the proceeding. “That’s a recipe for a decision on the last day of the term.”

The three remaining dates on which the court will issue opinions are this Thursday, next Monday and June 30, said the SCOTUSblog website (http://bit.ly/1cTU5nl). The court has 14 cases left on which it’s expected to issue decisions this term, Editor/Reporter Amy Howe told us.

Aereo’s streaming service allows users to pay a small monthly fee to lease and remotely operate one of hundreds of tiny antennas with a connected DVR, which can then be used to watch local broadcast content on mobile devices or through a Web browser. Aereo has argued that because users tune the antenna and record the content, they are “performing” the copyrighted work, rather than Aereo. ABC and other broadcasters have argued in numerous courts around the country -- including in the 2nd U.S. Circuit Court of Appeals, where the high court case originated -- that Aereo is responsible for performing the work and thus violating copyright rules. Aereo has argued that a ruling against its technology would also threaten cloud computing by striking down the 2nd Circuit’s Cablevision decision. The Department of Justice and others have argued that it’s possible for the court to rule against Aereo without striking down Cablevision.

On Monday, the court issued a decision in Susan B. Anthony List v. Driehaus, a case that had oral argument before the court the same day as Aereo. The Susan B. Anthony decision was unanimous, and opinions the court agrees on are generally issued more quickly than others, Howe said. The reverse can also be true, and a long delay in issuing a decision is sometimes an indication of a fractured court, with several justices authoring opposing opinions, Goldberg said. Multiple opinions could change the impact of an Aereo decision, said Pillsbury Winthrop communications attorney John Hane. If a majority of the court isn’t behind an opinion, it doesn’t have the force of precedent, so such a ruling against Aereo would be unlikely to have secondary effects on cloud computing, he said. Speculating about multiple opinions doesn’t have much of a basis in fact, said Howe. The Aereo opinion is not taking an unusual amount of time, she said. “I wouldn’t read anything into it."

The extremely technical nature of the Aereo case may also be pushing it to the back of the stack, Howe said. The Supreme Court justices don’t have a reputation for being technology-savvy, and they may be taking extra care with Aereo to make sure they understand it, she said.

With all cases related to Aereo nationwide on hold pending the Supreme Court decision, industry perception of where the case stands hasn’t changed much, said tech attorney Jonathan Band, who filed a neutral amicus brief in the case for the Center for Democracy and Technology. The high court seemed to have questions about Aereo’s business model, and appeared primarily concerned with not damaging cloud computing, Goldberg said. The probability of an Aereo win has dropped to 30 percent, said Wells Fargo analyst Marci Ryvicker in an email to investors last week. The market seems to believe Aereo will lose and thus the broadcast nets will win, she wrote. However, Aereo is “optimistic” about the outcome of the case, a spokeswoman there told us.