So the storm that had been brewing for some months – the long-impending Aereo argument in the Supreme Court – has now come and gone, and we are left to sift through what remains to try to figure out what’s next.
We are pleased to report that, as planned, our intrepid reporters on the Aereo beat, Kevin Goldberg and Harry Cole, attended the argument (nearly front-row seats, thank you very much) and were able to provide an overview of the festivities on CommLawBlog Live! less than three hours after the gavel came down in the courtroom. (That’s just a metaphor – Chief Justice Roberts did not appear to wield an actual gavel.) For those of you who missed it, you can catch a recording of the audio portion here, although you’ll miss the video of Kevin and Harry – which is, of course, the price you pay for not signing up for the live presentation.
Several highlights, in no apparent order:
- The Supreme Court’s head was in the clouds . . . literally. Many of their questions centered on how cloud computing might be affected by any decision in this case.
- At least four justices observed that Aereo looks just like a cable system, and at least a couple reflected an awareness that Aereo’s design was intended to allow it to avoid copyright obligations – but it’s not clear that that alone will convince them to find for the broadcasters.
- The argument did not dwell as much as we had expected on the specific statutory language at issue here (i.e., the Transmit Clause of the Copyright Act).
- Aereo’s counsel repeatedly characterized Aereo as being purely an equipment rental service. But he also acknowledged that, while some of its dime-sized antennas are “static”, i.e., devoted to a particular user, others are dynamic. In a dynamic system, an Aereo subscriber logging in to the service will be assigned whatever antenna is available, as opposed to any specific antenna.
- The Court did not appear troubled at all by the procedural posture of the case. That is, what’s on appeal is the denial of a preliminary injunction, a decision based on a relatively thin factual record. Despite that, the Court appears to be psychologically ready to resolve this case without having to remand it for further evidentiary proceedings.
Bottom line: Kevin and Harry figure that the Court’s decision will be a narrow one designed to avoid, to the extent possible, any untoward effects on cloud computing. While the Justices kept their cards close to their robes – as is their custom – our guess is that the Court will come down on the broadcasters’ side, possibly with a unanimous decision.
In addition, Kevin was interviewed on the LexBlog Network about the argument. You can hear – and see! – him here:
And now we all just sit back and wait for late June, when we expect to see the Court’s decision. Check back here for updates.