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Aereo Gets Support From Cable Operators, Law Professors, Tech Industry

The Supreme Court hears from amici curiae looking to save the digital upstart's business from legal challenge.

 Aereo CEO Chet Kanojia - P 2013
Aereo CEO Chet Kanojia

From office watercooler conversations to Twitter chatter, television has long been a social medium. So it's no surprise that many people have something to say about the upcoming April 22 hearing at the U.S. Supreme Court that could influence the future of the industry.

Both TV broadcasters and Aereo have friends. And thus, the Supreme Court has been besieged with amicus briefs.

The broadcasters previously garnered friendly support from the NFL, MLB, the Screen Actors Guild and others. The potentially big amicus briefs came for broadcasters from the U.S. government and the heavily cited copyright scholar David Nimmer (who, it should be noted, is of counsel to Irell & Manella, a firm that represents ABC, although apparently not in the Aereo litigation).

Wednesday is the day that amicus briefs supporting Aereo's position are being filed.

The high court justices are now hearing the opinion of the American Cable Association, which represents 850 small- and medium-sized cable operators, showcasing why the Aereo decision has the potential to literally swing billions of dollars.

According to the ACA's brief:

"Even though free over-the-air broadcasts are a viable alternative to cable television, ACA members welcome the development of new technologies that allow their customers to have better reception of free over-the-air local television broadcasts, thereby creating a modest safety-valve against what smaller cable companies consider to be unfair and oppressive retransmission consent rates extracted by threat of blackouts that would leave customers with a 'dark' channel unless untoward price demands are met."

Then there's the legal nitty-gritty, as best illustrated by the brief lodged by 36 law professors at some of the most prominent law schools in the nation. They frame Aereo's system that lets users watch or record broadcast TV using a PC or cellphone as pretty much the same thing as the Sony Betamax VCR, famously given a legal pass by the U.S. Supreme Court in 1984.

Three decades after Sony Corp. of America v. Universal City Studios Inc. shaped the course of entertainment technology, the law professors weigh in on the Aereo case's essential question of whether or not the upstart company is making a public or private performance of copyrighted work.

According to the law prof brief:

"Aereo does not infringe the public performance right for the same reason Sony did not: consumers who play back programs they previously recorded are engaged in private performances. Putting the storage device online rather than in a consumer's home does not change its essential operation. The Petitioners' theory to the contrary requires an implausible interpretation of 'public performance,' one so broad that it would read 'public' out of the statutory definition entirely."

And yet more amicus briefs are coming in from the likes of Consumer Electronics Association, whose members include Amazon.com, Apple Inc., Google and Microsoft Corporation. These companies are concerned that an adverse ruling for Aereo could threaten novel technologies and are cautioning the Supreme Court to be mindful of the fact that the TV industry does not always knows what is best for them.

According to the CEA's brief jointly authored with Public Knowledge and the Electronic Frontier Foundation:

"Aereo's technology has the potential to bring new viewers to broadcast TV, increasing advertising revenues and allowing broadcast programming to better compete against cable programming. If Aereo does not do so — if its technology and business model do not create more value for its customers than other video technology providers — then Aereo and businesses using similar technology will disappear from the market without the intervention of this Court. "

Others in support of Aereo include satcaster Dish Network, a group of small and independent broadcasters and the Consumers Union. Additional amicus briefs are expected today as well.

E-mail: Eriq.Gardner@THR.com
Twitter: @eriqgardner