Aereo at the Supreme Court: a guide to the biggest TV case in 30 years (and where to learn more)

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Update 11:20am PT: My story recapping this morning’s hearing can be found here. Read on for the backstory of the case.

On Tuesday at 11am ET, Aereo will face off at the Supreme Court against big broadcasters and the Justice Department over whether Aereo, which lets consumers watch and record over-the-air TV for $8/month, should be shut down for copyright infringement.

Here’s a brief Q&A about the most important TV case since 1984, when the Supreme Court found the VCR to be a legal technology. Below you can find links to full background coverage.

What is Aereo and why are the broadcasters suing it?

Aereo rents dime-size antennas that act like long-distance rabbit ears attached to a remote DVR. The service, which is available in 11 cities, lets people watch and record over-the-air channels like NBC and Fox by streaming shows to their phone or computer.

The broadcasters say Aereo is violating copyright law by rebroadcasting their signals. Aereo, however, claims that it’s the subscribers who are doing the transmitting, and that Aereo simply rents a tool that lets people watch a private performance — much like they do when they tape a TV show and watch it their living room.

What does each side want?

The broadcasters want the Supreme Court to reverse an appeals court ruling, and to issue an injunction that will shut Aereo down across the country. Aereo wants the court to say it does not violate copyright law, which would allow it to expand to more cities, including ones on the west coast.

How long is the hearing and how can I follow it?

The hearing lasts one hour. The lawyer for ABC and the other broadcasters will argue for 20 minutes, and the Deputy Solicitor General (who is siding with ABC) will weigh in for 10 minutes on behalf of the Justice Department. Aereo gets 30 minutes to make its case.

The Supreme Court is still a sketchbook and note-pad sort of place, so there will be no live-blogs, tweeting or TV. But Gigaom and others will be filing stories shortly after the hearing.

How will the Justices decide?

Experts genuinely aren’t sure and are predicting a tight ruling. Liberal Justice Ruth Bader Ginsburg is expected to side with the broadcasters, but the views of the other Justices are less clear.

Copyright lawyer Ali Sternburg has pointed out that Justice Elena Kagan did not support the broadcasters in a similar Supreme Court case when she was Solicitor General, and noted that Justice Stephen Breyer has argued in the past for more limited copyright — meaning these two Justices could side with Aereo. As such, the outcome is likely to come down to Chief Justice John Roberts and the other conservatives on the bench.

Another notable feature of the case is that, in an unusual move, Justice Samuel Alito at the last minute reversed his early decision to recuse himself from the case. Alito’s surprise move eliminated the prospect of a 4-4 tie, which would have upheld a lower ruling in favor of Aereo.

Finally, veteran SCOTUS reporter Lyle Denniston observes that things will turn out poorly for Aereo if the Justices spend most of their time focusing on what Aereo is doing — while things will look brighter if the Justices’s questions are instead about what consumers are doing when they use the service.

When will the decision come?

Sometime in the summer — probably late June or early July.

Why is the case so important?

Aereo right now is still just a speck in the massive television economy. But the TV industry is worried that Aereo could eventually upset the current “bundle” model of TV, which relies on selling consumers a large package of channels. If Aereo is legal, it may encourage more consumers to “cut the cord” and replace their pay-TV provider with some combination of Aereo and other internet services like Netflix.

This had led the broadcasters to threaten that, if Aereo wins, they will take their signals off the air and become cable channels. Meanwhile, sports leagues like the NFL — which seek to tightly control how and where people watch their games — are warning that Aereo will hurt their business, and are supporting the broadcasters in the case.

The case also has implications for the emerging cloud computing industry. Companies like Google and Dropbox, which are supporting Aereo, worry that a win for the broadcasters could thrust the “public performance” right — the central legal issue in this case — into a host of other consumer cloud services.

Where can I learn more about all this?

Argument preview: Free TV at a bargain price? (SCOTUS Blog’s rundown of all legal issues, including the Justice Department perspective)

Here are 3 ways Aereo will tell the Supreme Court it is legal (Our overview of Aereo’s legal strategy)

Aereo Case will Shape TV’s Future (New York Times media writer David Carr explains what the case means for the TV industry)

Aereo’s CEO on the future of Netflix, TV sports and the public airwaves (Gigaom’s interview with Chet Kanojia)

What happens if broadcasters lose the Aereo case? (Fortune story contains numerous quotes from TV analysts and law professors)

Inside Aereo: new photos of the tech that’s changing how we watch TV (Gigaom’s original profile of the Brooklyn site where it all started)

 

 

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