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In advance of the April 22 hearing between television broadcasters and Aereo, the Supreme Court is getting flooded with amicus briefs.
One in particular deserves special attention.
On Monday, the United States weighed in favor of the broadcasters.
The coming dispute will examine whether Aereo is making a “public” or “private” performance of broadcasters’ content when capturing over-the-air TV signals via antennas and distributing programming to subscribers’ digital devices.
“The proper resolution of this dispute is straightforward,” says the government in its brief. “Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas, respondent does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, respondent operates an integrated system — i.e., a ‘device or process’ — whose functioning depends on its customers’ shared use of common facilities.”
Aereo contends that what it does is private in nature because each subscriber is assigned a single unique copy and that only that individual subscriber can receive a transmission. The interpretation was given a blessing by the Second Circuit Court of Appeals in affirming the denial of an injunction, which the broadcasters are appealing.
The U.S. government continues, “The fact that as part of that system respondent uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content ‘to the public.’ Like its competitors, respondent therefore must obtain licenses to perform the copyrighted content on which its business relies. That conclusion, however, 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 full brief is below. It was authored by attorneys at the United States Copyright Office (part of the legislative branch) and the office of the Solicitor General (part of the executive branch).
It is among several amicus briefs to be lodged today. Among the others: A group of international rights holders is arguing that the Second Circuit decision violates a number of international treaties. Meanwhile, Cablevision is attempting to find some middle ground, arguing in its own brief that the Second Circuit was right to deny an Aereo injunction, but that broadcasters are going too far with arguments it says could halt innovation in cloud services. Also, renowned copyright scholars David Nimmer and Peter Menell are sticking up for the broadcasters, saying that Aereo is “functionally equivalent” to a cable system and falls within the intended scope of the Transmit Clause.
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