US sides with networks against Aereo in Supreme Court fight

In a "friend of the court" brief, the US solicitor general says Aereo is breaking copyright law, but that doesn't mean other cloud services are.

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Joan E. Solsman
3 min read
An array of Aereo antennae
Aereo's arrays of dime-size antennas. Aereo

The US government's representative to the Supreme Court filed a brief Monday arguing that Aereo, the service streaming broadcast TV over the Web, is violating copyright law -- but that doesn't mean all cloud-storage services should be put under the same scrutiny.

In an amicus brief, which is essentially an official memo to the Supreme Court justices recommending a decision, Deputy Solicitor General Edwin S. Kneedler classified Aereo's Internet transmissions of broadcast TV as a public performance -- the kind you have to pay a copyright holder to do.

Aereo is set up to assign an individual, tiny antenna for each subscriber, and it makes an individual copy of the content for each user. That format is meant to circumvent copyright restrictions: Anyone is allowed to watch broadcast TV free with an antenna, and Aereo argues it is simply operating each member's antenna on his or her behalf. On the other side, the networks argue that at the end of the day, Aereo's business is indistinguishable from the public performances of a cable or satellite service, except that cable and satellite providers pay for the right to distribute that programming. Without paying, Aereo is infringing copyrights, the networks say. (Disclosure: CNET is owned by CBS, which is among the companies suing Aereo.)

Kneedler agreed with the broadcasters in his brief.

"Because [Aereo's] system transmits the same underlying performances to numerous subscribers, the system is clearly infringing," he wrote.

However, he said that line of reasoning doesn't extend to other cloud-based services, what you'd commonly associate with Amazon storage lockers or Dropbox. "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 solicitor general, whose role it is to conduct the government's litigation in the US Supreme Court and represent the government's interest there, frequently files amicus briefs to indicate a case's importance, and the opinions of the court often refer to solicitor general briefs.

The filing comes the same day as another amicus brief, this one from the private sector, arguing the same points, and it quickly follows Aereo's first stumble in a lower court.

Read: Aereo's Supreme Court battle may change how you watch TV

Earlier Monday, cable operator Cablevision filed an amicus brief reiterating its past statements that while it believes Aereo is infringing copyright, the court shouldn't go so far as to reverse the precedent set in a landmark case involving Cablevision itself, a case that Aereo is relying on for its legal defense.

In the Cablevision case, the cable operator won its court battles against media companies to offer network DVR, a cloud-based recording system that doesn't require recording hardware in the home. The case underpins Aereo's legal argument.

Cablevision, Aereo, and others have argued that broadcasters' fight against the streaming startup is a proxy attack on a decision, known as Cablevision after the company, which is integral to the cloud computing and storage industry.

And last month, a US district court granted the first preliminary injunction against Aereo out of the patchwork of lawsuits against the company, handing broadcasters their first clear legal win ahead of a Supreme Court fight. The court's decision will affect Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. Of the 11 cities where Aereo currently operates, Salt Lake City and Denver fall under the decision's scope.

Similar preliminary injunctions have been denied in the New York-based Second Circuit court of appeals and in Boston, something Aereo has touted as support for its legal status as it heads to the country's high court.

Aereo, backed by IAC Chairman Barry Diller, offers a cloud-based DVR that lets users record over-the-air programming and play it back on personal devices, charging $8 a month for its cheapest package. It has been sued repeatedly by media companies, which claim the service infringes their copyrights.