May it please the court? Maybe, maybe not. YOU be the judge.
Even those practiced in the art of appellate advocacy have trouble correctly guessing, on the basis of oral arguments, how a court will ultimately rule. (Doubt that? Just ask the Swami.)
The post-argument guessing game is particularly hard for the Great Unwashed because appellate arguments tend to be somewhat intimate affairs, not widely publicized beforehand, seldom recorded for extensive public consumption. Any press accounts of arguments tend to shed only limited light on precisely what was said, making it hard for the reader to draw any conclusions.
But things are different in the U.S. Court of Appeals for the Ninth Circuit which, as it turns out, posts audio recordings of its arguments on its website within 24 hours of each argument. Who knew?
So if you’ve got about 45 minutes and want to try to figure out what’s going to happen next in the Aereokiller case, click on this link. (Note: Aereokiller has since re-named itself FilmOn X, even though it’ll always be Aereokiller to us.) Clicking on that link will allow you to download and open the recording of the August 27 oral argument before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (sitting in Pasadena). See if you can figure which way the court’s going to go.
The argument, of course, concerns whether the injunction issued against FilmOn X’s operation in the Los Angeles area should be lifted. Our readers will recall that U.S. District Judge George Wu granted the request of a number of broadcasters and program producers last December and put the kibosh on FilmOn X, whose program distribution service (based on individualized mini-antennas) is supposedly nearly identical to that of Aereo. FilmOn X has appealed that decision to the Ninth Circuit.
The outcome of the case will be of more than passing interest to the TV industry. The Ninth Circuit’s sister circuit in New York – the Second Circuit – has at least preliminarily held, in the Aereo litigation, that the Aereo/FilmOn X system of program distribution does not constitute copyright infringement even though the over-the-air stations whose programs are being distributed don’t consent to that distribution. Judge Wu’s decision on the West Coast went in the opposite direction. As we have observed, if the Ninth Circuit affirms Wu’s decision, we’ll have a “circuit split” that could lead the Supreme Court to wade in.
So that’s the set-up. Give a listen to the arguments before the Ninth Circuit and see how you think the court’s going to rule. It’s particularly tough in this case because, unlike other courts, this particular panel isn’t especially chatty. Often, judges seem to dominate the conversation in appellate arguments; that doesn’t really happen in this case.
For our money, though, the most interesting exchanges occur at around 8:30-10:00 and then again around the 25:00 mark. There, one of the judges – we suspect it’s Judge Diarmuid O’Scannlain, but we’re not 100% sure – suggests that the bottom line issue may be one for Congress, not the courts, to resolve. In other words, if FilmOn X is merely availing itself of a loophole in the Copyright Act, shouldn’t it be up to Congress to close that loophole? (If the court goes in that direction, of course, it could be Bad News for broadcasters.) In the later colloquy, Robert Garrett, counsel for a number of the broadcaster/appellees in the case, does his best to persuade Judge O’Scannlain and his colleagues that they, and not Congress, can and should deal with the problem.
How well did Mr. Garrett do? Take a listen and let us know what you think. We’ll let you know as soon as we learn of the court’s decision (which may take a couple of months to get cranked out).