Broadcasters’ cert petition is granted; Alito recuses himself, Kagan doesn’t

The Supreme Court has decided that now would be a good time to consider the arguments arising from the Second Circuit’s Aereo decisions to date – so the Supremes have granted the petition for certiorari filed by the broadcaster parties to the Second Circuit case. While this could ordinarily bode well for the broadcasters – after all, if the Supreme Court thought the Second Circuit got it right, they could just deny cert and let the Second Circuit’s action stand – you can probably expect Aereo to claim something of a victory here because, as we have previously reported, Aereo itself urged the Court to take the case.

As of this writing the briefing and argument schedules haven’t been posted on the Supreme Court’s website. Since the Court will be hearing arguments until the end of April, it seems reasonably likely that the Aereo case will be briefed and argued this term, which would mean that a decision from the Court by the end of June would be a near certainty. 

From the scant information that is currently available, it’s impossible to say how the Court is likely to rule. There are, however, two interesting tidbits that may or may not come into play down the line.

First, Justice Alito recused himself from consideration of the cert petition. As is customary, no reason for his recusal was given, nor did the Court’s order disclose whether he would be recused from the merits end of the case – although recusal there would seem more than likely. If he’s out, that would reduce the number of justices hearing the case to eight, giving rise to the possibility of a 4-4 split. In that case the decision of the lower court – i.e., the Second Circuit’s order upholding the denial of a preliminary injunction against Aereo – would remain in place.

Second, Justice Kagan did not recuse herself.

While there is no reason that she should have, her involvement in the Court’s deliberations could prove particularly important.  Why? Because Aereo’s case – indeed, some would say its whole system design – is based on the Second Circuit’s 2008 Cablevision case in which the Circuit concluded that Cablevision’s Remote Storage-DVR system did not infringe on copyrights held by various program producers whose works were recorded and transmitted through that system. Having lost at the Second Circuit, the copyright holders asked the Supreme Court to take a look at the case, just like the broadcast parties have done in the Aereo case.

In considering whether or not to take the Cablevision case, the Supremes asked the U.S. Department of Justice for its views on the subject. In May, 2009, the Solicitor General weighed in with a recommendation against Supreme Court review. BUT that recommendation was guarded and hedged.  In particular, the SG noted that “some aspects of the Second Circuit’s reasoning on the public-performance issue are problematic”. For example,

Some language in the [Second Circuit’s] opinion could be read to suggest that a performance is not made available “to the public” unless more than one person is capable of receiving a particular transmission. . . . Such a construction could threaten to undermine copyright protection in circumstances far beyond those presented here, including with respect to [video-on-demand] services or situations in which a party streams copyrighted material on an individualized basis over the Internet.

So, at least in the SG’s view, Cablevision was not necessarily the most persuasive case on a number of fronts, including its interpretation of the Copyright Act’s Transmit Clause. But interpretation of that clause was absolutely crucial to the Second Circuit’s Aereo decisions, and there the Circuit relied extensively on Cablevision. So if Cablevision is really “problematic”, that may not be a good sign for Aereo.

Did we mention that the Solicitor General who signed the Cablevision brief – the brief that characterized the Second Circuit’s Cablevision opinion as “problematic” – was (drum roll, please) Elena Kagan?

So we’re off to the Supremes. Check back here for updates.