It’s Copyright Vs. Cloud At Aereo Hearing

WASHINGTON (AP) — Supreme Court justices debated Tuesday whether they can side with broadcasters in a copyright challenge to an Internet startup company without threatening the burgeoning world of cloud computing.

The high court heard arguments in the dispute between television broadcasters and Aereo Inc., which takes free television signals from the airwaves and allows subscribers to watch the programs on laptop computers, smart phones and other portable devices. The case has the potential to bring big changes to the television industry.

But several justices expressed concern that a ruling for the broadcasters could hamper the continuing development of cloud computing, which gives users access to a vast online computer network that stores and processes information.

Justice Stephen Breyer said the prospect makes him nervous. “Are we somehow catching other things that would really change life and shouldn’t?” Breyer asked.

Paul Clement, representing the broadcasters, tried to assure the court it could draw an appropriate line between Aereo’s service and cloud computing generally. People who merely retrieve what they have stored should have no reason to worry, Clement said.

But David Frederick, representing Aereo, said the “cloud computing industry is freaked out about the case” because it sees its $10 billion investment at risk if the court were to hold that anytime music or an image is stored online and then retrieved, the copyright law would be implicated.

Aereo’s service starts at $8 a month and is available in New York, Boston, Houston and Atlanta, among 11 cities. Subscribers get about two dozen local over-the-air stations, plus the Bloomberg TV financial channel.

In the New York market, Aereo has a data center in Brooklyn with thousands of dime-size antennas. When a subscriber wants to watch a show live or record it, the company temporarily assigns the customer an antenna and transmits the program over the Internet to the subscriber’s laptop, tablet, smartphone or other device.

The antenna is only used by one subscriber at a time, and Aereo says that’s much like the situation at home, where a viewer uses a personal antenna to watch over-the-air broadcasts for free.

Chief Justice John Roberts repeatedly asked Frederick whether the tiny antennas existed for any reason other than to avoid paying the broadcasters for their content. “Is there any reason you need 10,000 of them?” Roberts said at one point. He suggested that it might not affect his view of the case if there was no other reason.

But Frederick said it was much cheaper for Aereo, backed by billionaire Barry Diller, to add equipment as it grows, rather than start with a single large antenna.

Broadcasters including ABC, CBS, Fox, NBC and PBS sued Aereo for copyright infringement, saying Aereo should pay for redistributing the programming the same way cable and satellite systems do. Some networks have said they will consider abandoning free over-the-air broadcasting if they lose at the Supreme Court.

The broadcasters and their backers argue that Aereo’s competitive advantage lies not in its product, but in avoiding paying for it.

NAB President-CEO Gordon Smith commented after the hearing: “NAB appreciates the opportunity for broadcasters to argue the merits of the case against Aereo before the Supreme Court. We believe the preservation of copyright laws is at the heart of the case and are optimistic the rights of content producers will be upheld. We look forward to the court’s final decision.”

Aereo counsel David Frederick, said after the hearing: “From our perspective, the issue in the case was whether consumers who have always had a right to have an antenna and a DVR in their home and make copies of local over-the-air broadcast television, if that right should be infringed at all simply by moving the antenna and DVR to the cloud.

“The court’s decision today will have significant consequences for cloud computing. We’re confident, cautiously optimistic, based on the way the hearing went today that the court understood that a person watching over-the-air broadcast television in his or her home is engaging in a private performance and not a public performance that would implicate the Copyright Act.”

Aereo founder and CEO Chet Kanojia recently told The Associated Press that broadcasters can’t stand in the way of innovation, saying, “the Internet is happening to everybody, whether you like it or not.” Aereo, backed by Diller, plans to more than double the number of cities it serves, although the high court could put a major hurdle in the company’s path if it sides with the broadcasters.

The federal appeals court in New York ruled that Aereo did not violate the copyrights of broadcasters with its service, but a similar service has been blocked by judges in Los Angeles and Washington, D.C.

The 2nd U.S. Circuit Court of Appeals in New York said its ruling stemmed from a 2008 decision in which it held that Cablevision Systems Corp. could offer a remote digital video recording service without paying additional licensing fees to broadcasters because each playback transmission was made to a single subscriber using a single unique copy produced by that subscriber. The Supreme Court declined to hear the appeal from movie studios, TV networks and cable TV companies.

In the Aereo case, a dissenting judge said his court’s decision would eviscerate copyright law. Judge Denny Chin called Aereo’s setup a sham and said the individual antennas are a “Rube Goldberg-like contrivance” — an overly complicated device that accomplishes a simple task in a confusing way — that exists for the sole purpose of evading copyright law.

The case is ABC v. Aereo, 13-461.