Aereo Update: And the Question is . . .

The Supremes opt to use the broadcasters’ formulation of the question to be resolved by the Court.

OK, all you Supreme Court tea leaf readers, you’ve got another leaf to read in the Aereo case. According to the Supreme Court’s website, the “question presented” that the Court has decided to use as the focus for briefing in that case is this:

A copyright holder possesses the exclusive right “to perform the copyrighted work publicly.” 17 U.S.C. §106(4). In the Copyright Act of 1976, Congress defined the phrase “[t]o perform ... ‘publicly’” to include, among other things, “to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Id. §101.

Congress enacted that provision with the express intent to bring within the scope of the public-performance right services that retransmit over-the-air television broadcasts to the public. Respondent Aereo offers just such a service. Aereo captures over-the-air television broadcasts and, without obtaining authorization from or compensating anyone, retransmits that programming to tens of thousands of members of the public over the Internet for a profit. According to the Second Circuit, because Aereo sends each of its subscribers an individualized transmission of a performance from a unique copy of each copyrighted program, it is not transmitting performances "to the public," but rather is engaged in tens of thousands of “private” performances to paying strangers.

The question presented is:

Whether a company "publicly performs" a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

That’s possibly good news for broadcasters, because that’s the way that they perceived the question that the Court should be addressing. 

By contrast, when it advised the Court that it wouldn’t mind if the Court agreed to review the Second Circuit’s Aereo decisions, Aereo said that the appropriate question should be:

Whether Aereo “perform[s] publicly,” under Sections 101 and 106 of the Copyright Act, by supplying remote equipment that allows a consumer to tune an individual, remotely located antenna to a publicly accessible, over-the-air broadcast television signal, use a remote digital video recorder to make a personal recording from that signal, and then watch that recording.

It doesn’t take a particularly sensitive reader to identify the different slants in the two questions: the broadcasters’ approach lays things out from the broadcasters’ perspective, while Aereo’s is more Aereo-centric.

The fact that two opposing parties would propose conflicting versions of the “question presented” is not surprising. The rules of appellate litigation call for each party to specify the “question presented” for the court’s consideration, and litigators routinely take that opportunity to try to get the court to view the case from their respective clients’ viewpoint from the get-go. It’s a subtle thing, the actual utility of which is difficult, if not impossible, to assess. But in big-time appellate law – especially in a venue like the Supreme Court – you don’t pass on any opportunity to grab a possible advantage, no matter how slim the odds that it’ll really help. 

Hence the dueling “questions presented”.

The fact that  the Court has now announced that the parties are to use the broadcasters’ “question presented” as the starting point of their briefs on the merits seems like good news for the broadcasters. It suggests at least an initial willingness on the Court’s part to see things the way the broadcasters see them. Of course, lots can happen between now and the Court’s ultimate decision, and the “question presented” may prove to be of no consequence.

Again, this is just another tea leaf. Maybe it means something, maybe it doesn’t. But the parties’ lawyers presumably think it’s significant: they did, after all, bother to advance their respective versions, an effort they probably wouldn’t have made if they didn’t think it would make any difference. 

So if you’re sizing up the odds before placing your bets on the case, you should be aware that, to the extent that the “question presented” may provide a possible soupçon of a hint of the Court’s leaning, the broadcasters may have won the first round.

As always, check back with us for further updates.

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