This week, several groups filed amicus curiae (“friend of the court”) briefs in the ABC v. Aereo case currently pending before the United States Supreme Court.  Although the case is not scheduled to be argued until April 22, and Aereo has yet to file its opposition brief (due March 26), already the National Association of Broadcasters, a group of International Associations and Copyright Scholars, the Copyright Alliance, The Media Institute, Professors Peter S. Menell and David Nimmer, ASCAP, the American Intellectual Property Law Association, BSA | The Software Alliance, Cablevision, and the U.S. Department of Justice have all weighed in on the appeal brought by the major network broadcasters in their ongoing fight against Aereo’s streaming television service.  Almost all of the amici (with the exception of BSA and the Software Alliance, who principally argue against any decision by the Court that may stifle cloud computing) have uniformly rejected Aereo’s position that its service does not infringe the broadcasters’ copyrights. There is little doubt that the snowball of amicus briefs will continue to grow; maybe one or two may even support Aereo (stranger things have happened).  The question is, do these submissions effectively aid the Court in reaching its decision?

The Rules of the Supreme Court of the United States state that “an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.”  However, “an amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”  There is no doubt that the amicus briefs filed in Aereo raise valid arguments.  Yet the issue before the Court, “whether a company ‘publicly performs’ a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet,” is, on its face, a narrow one.  Concerns over what effect the Court’s decision may have on, for example, cloud computing and streaming music services, are certainly important and worth debating.  But must the Court address these issues in this case?  Is it necessary to answer the question presented?  The central – and only – issue before the Court in Aereo, as framed by the broadcasters, concerns Aereo’s streaming technology and whether its retransmission of the broadcasters’ signals to its subscribers constitutes a public performance.  

The Second Circuit’s majority opinion in the underlying case accepted Aereo’s argument (which relied heavily on Cablevision’s victory in another key Second Circuit case) that its technology creates a unique copy of the broadcasters’ content for each subscriber which is then only available to that specific subscriber via a dedicated antenna; to wit, at issue is a private, not a public performance.  As the Second Circuit explained:

It is beyond dispute that the transmission of a broadcast TV program received by an individual’s rooftop antenna to the TV in his living room is private, because only that individual can receive the transmission from that antenna, ensuring that the potential audience of that transmission is only one person. Plaintiffs have presented no reason why the result should be any different when that rooftop antenna is rented from Aereo and its signals transmitted over the internet: it remains the case that only one person can receive that antenna’s transmissions. Thus even without the creation of user-associated copies, which under Cablevision means that Aereo’s transmissions are not public, there is significant reason to believe that Aereo’s system would not be creating public performances, since the entire chain of transmission from the time a signal is first received by Aereo to the time it generates an image the Aereo user sees has a potential audience of only one Aereo customer.

Judge Denny Chin, in his dissenting opinion, strongly disagreed with the majority’s decision, finding that Aereo’s service is a “sham” and “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”  According to Judge Chin, Aereo did not have a “technologically sound reason” for using thousands of individually assigned, dime-sized antennas instead of a central one, other than to skirt Copyright law.  So far, the broadcasters and their legion of amici agree with Judge Chin.

What remains to be seen is how broadly the Court will address the central issue in Aereo and what significance, if any, it will give to the amici’s concerns.  It will also be interesting to see how the Court deals with the Second Circuit’s decision in Cablevision; a possibility which troubles Cablevision and is likely a prime motivator for its amicus filing this week.  It is worth noting that the Second Circuit in issuing its decision in Cablevision reversed the district court judge (at the time, Judge Denny Chin).  Judge Chin has made it clear that, in his view, Cablevision was wrongly decided.  It is thus conceivable that the Supreme Court may decide against Aereo, and, in so doing, send Cablevision to the same watery grave (an unlikely result, I think, but the possibility exists).  In the end, Judge Chin may be vindicated two times over.