Legal Memo by Michael D. Berg

ABC-Aereo Set For Supreme Court Showdown

The copyright infringement case has moved to the High Court. Here's a look at the case's quick timing, the filing of friend of the court briefs, the parties and their arguments, and a little “tea leaf reading” of current Supreme Court justices’ prior positions in cases that might influence their perspective.

Each year the U.S. Supreme Court (SC) grants less than 1% of requests for review of lower federal court rulings. On Jan. 10, the dispute between TV broadcasters and Aereo Inc. became part of that 1%.

On that date the SC granted broadcasters’ petition for review of the April 2013 Second Circuit New York federal appeals court copyright law ruling in favor of Aereo. In this column the new SC case is called ABC.

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The crux of the dispute is the legality of the businesses operated by Aereo (and its competitors such as FilmOn). Without consent from or compensation to the TV broadcasters, Aereo and its competitors use multiple tiny co-located antennas, one for each subscriber, to capture over-the-air TV broadcast signals and retransmit them to paying customers via the Internet to consumer devices. Background is available in my two earlier TVNewsCheck columns, The 411 on Aereo's Many Legal Challenges and The Two Court Rulings Rocking Aereo, FilmOn.

Today’s column focuses on what’s ahead at the High Court: its quick timing, the filing of amicus (“friend of the court”) briefs, the parties and their arguments, and a little “tea leaf reading” of current SC justices’ prior positions in cases that might influence their perspective in ABC.

ABC is one of several similar federal broadcaster/Aereo, and broadcaster/FilmOn, cases in different judicial circuits. Some are in early stages. In California and D.C., federal courts have ruled for broadcasters and against FilmOn on essentially the same facts and legal issues as in ABC, by granting broadcaster-requested injunctions against FilmOn from operating anywhere in the U.S. outside of the Second Circuit (the states of New York, Connecticut and Vermont). This split in federal judicial circuits is often a reason for grant of SC review.

Pending the SC ABC outcome, the other lower federal court cases are already, or likely will be, stayed — suspended until the SC rules in ABC.

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The SC ABC schedule (Broadcasters are the petitioners, Aereo Inc. is the respondent.)

  • Feb. 24 (45 days after Jan. 10): Petitioning broadcasters’ deadline to file a brief explaining why they should win on the merits of the case. (If any filing in this list is made earlier than the SC deadline, the deadline for the next step runs from the actual filing date of the early filing).
  • Seven days after petitioners’ brief is filed: Deadline for amicus briefs in support of the broadcasters, and deadline for amicus briefs that don’t support either side.
  • Thirty days after petitioners’ brief is filed: Aereo must file its respondent brief, explaining why it should win on the merits of the case.
  • Seven days after filing of respondent’s brief: Any amicus briefs in support of Aereo are due
  • Thirty days after respondent brief filing, petitioners may file a reply brief, responding to the points made by Aereo, but it must be filed at least seven days before oral argument.
  • Oral argument before the SC: To be set by the court, probably for late April.
  • By or soon after July 4: The justices issue their decision(s). The most senior justice in the majority writes the majority opinion or assigns it to another justice.

Justice Samuel Alito has recused himself — opted out of participation in this case. Usually this is due to ownership of stock in a party to the case or other factor that could affect impartiality. In ABC, there could be a 4-4 split, with four justices siding with Aereo and four with the broadcasters and no “majority opinion.” If that happened, the Second Circuit appeals court ruling for Aereo would remain in effect, although it would have somewhat less value as precedent than if there were a majority opinion.

Parties to the Case and Their Main Arguments

  • The parties. The petitioners include American Broadcasting Companies, Disney Enterprises, CBS Broadcasting, CBS Studios, NBCUniversal Media, NBC Studios, Universal Network Television, Telemundo Network Group, WNJU-TV Broadcasting, ABC, Thirteen Productions, Fox Television Stations, Twentieth Century Fox Film Corporation, WPIX, Univision Television Group; The Univision Network Limited Partnership, and Public Broadcasting Service. The respondent is “Aereo Inc. (formerly known as Bamboom Labs)."
  • The legal issues. The specific legal question to be resolved is whether, under the “Transmit Clause” of the Copyright Act,  Aereo “publicly performs” copyrighted broadcast television programs when it retransmits the programs for Internet viewing to potentially thousands of  individual identical antennas, one for each Aereo subscriber. If these are “public” performances, copyright protection applies. If “private,” copyright protection does not apply, under the transmit clause, but may apply under other copyright provisions.

The Second Circuit appeals court, the same one that ruled for Aereo last year, held in the 2008 Cablevision case that the “relevant consideration” under the “transmit Clause is whether the public is capable of receiving a particular transmission. Therefore, the court said, when each member of the public is capable of receiving a particular transmission, the transmission is private and not protected under the Copyright Act.


Comments (2) -

FlashFlood Nickname posted over 3 years ago
If Aereo wins, than FilmOnX will win as well and they both can do nationwide rollouts. However, if Aereo loses, than both Aereo and FilmOnX will have to go out of business.
Terry Heaton posted over 3 years ago
Thank you for this summary, Michael. It's very useful.
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Overnights, adults 18-49 for September 22, 2016
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Source: Nielsen


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