From oral arguments, it was hard to read exactly which direction the high court was moving, a notoriously unpredictable prospect in copyright cases. But the case undoubtedly touched a nerve in the entertainment industry, as an array of broadcast executives, copyright lawyers and tech advocates crowded the chambers. Justice Ruth Bader Ginsburg noted that Aereo is “the only player that is paying no royalties whatsoever” for broadcast content.
Justice John Roberts questioned whether Aereo was merely designed to exploit a loophole in copyright law. Stations argue that its system of copying live signals and then transmitting them to subscribers via dime-sized antennas was a public performance and therefore fell within the bounds of the Copyright Act.
Roberts even seemed to make light of Aereo’s notion that its copying of broadcast signals, for transmission to subscribers, somehow made it different from other cases of infringement.
“You are saying your copy is different from my copy,” he said to some laughs.
While cable and satellite providers pay fees to retransmit broadcast signals, Aereo argues that it is merely supplying the antenna equipment and letting individuals direct what they watch and when.
Nevertheless, plenty of time during the oral arguments was paid to the future of technology, and why Aereo was any different from a host of in-home devices that have disrupted entertainment in the past, like the VCR and the DVR.
Going into the hearing, many in the broadcast industry had been optimistic about their prospects. The Supreme Court didn’t have to take the case now, but did so after they petitioned the justices when the 2nd Circuit Court of Appeals and a district court refused to grant an injunction to shut Aereo down. Moreover, the U.S. Solicitor General filed a brief favoring the broadcast side, and one of the deputies, Malcolm Stewart, argued before the justices on Tuesday.
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