With more than six weeks to go before the April 22 oral argument, the Aereo case in the Supreme Court is in what litigators refer to as the “briefing phase” – the various parties are busy preparing and submitting their written arguments to the Court. The broadcaster-petitioners have already filed their brief; Aereo’s is due shortly.
But newsworthy things are still happening. Indeed, despite the snow storm that shut down Washington, D.C. yesterday, there were two noteworthy developments in the Aereo case.
First and perhaps most important, the U.S. Department of Justice – through its principal appellate mouthpiece, the Solicitor General – weighed in with an amicus brief in support of the broadcaster-petitioners. This is Big News because the DOJ’s opinion tends to be taken very seriously by the Court. And the DOJ’s brief reads like a broadcaster’s dream. (You can read a copy of the brief, posted by Deadline.com, here – props to Deadline.com for tracking this down and getting it up on line so quickly.)
Check out DOJ’s summary of its own argument:
The proper resolution of this dispute is straightforward. Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas . . ., [Aereo] does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, [Aereo] operates an integrated system—i.e., a “device or process”—whose functioning depends on its customers’ shared use of common facilities. The fact that as part of that system [Aereo] uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content “to the public.” Like its competitors, [Aereo] therefore must obtain licenses to perform the copyrighted content on which its business relies.
Additionally, anticipating Aereo’s argument that a decision in favor of the broadcasters here would seriously hamper the development of innovative new technologies (including, e.g., cloud computing services), the DOJ assures the Court that that is not the case:
[The DOJ’s position] should not call into question the legitimacy of businesses that use the Internet to provide new ways for consumers to store, hear, and view their own lawfully acquired copies of copyrighted works.
The DOJ also takes pains to assure that Court that they need not toss the Second Circuit’s 2008 Cablevision decision. That decision, of course, is what apparently inspired Aereo’s business plan. As a practical matter, appellate courts (including the Supremes) generally prefer not to upset longstanding precedents if they can avoid doing so. Not to worry, says the DOJ – contrary to Aereo’s thinking, there are important distinctions between its system and the Remote Storage DVR system upheld in Cablevision, just like Judge Chin argued in his dissents to the Second Circuit Aereo decisions.
Again, the DOJ is just one more voice in the overall mix of voices trying to sway the Court in one direction or the other. But the DOJ’s voice tends to be loud and authoritative. If you still haven’t tossed your bet into the Aereo pool in your office, be sure to take a look at the DOJ’s brief before picking a side.
And the other development at the Supremes? It turns out that FilmOn X won’t have a seat at counsel’s table when April 22 rolls around. FilmOn X had asked the Court to let it “intervene” in the case – that is, to be deemed a party with essentially the same status as Aereo. That would have given FilmOn X at least a shot at some oral argument time. But in a standard one-sentence turn-down, the Court (not including Justice Alito, who has recused himself) denied FilmOn X’s motion.
That’s something of a disappointment, as the entertainment value of seeing Barry Diller’s Aereo and FilmOn X (née AereoKiller.com a/k/a BarryDriller.com) sitting on the same side of counsel table would have been off the charts. FilmOn X may still be able to get its two cents’ worth in by filing an amicus brief of its own – not quite the same as being a full-fledged intervenor, but still a chance to be heard to some degree.