updated 08:53 pm EST, Mon March 3, 2014
Amicus brief: server bank nixes value of single antenna per subscriber
The Obama administration has filed an amicus curae ("friend of the court") brief with the US Supreme Court, saying that it feels that web streamer Aereo must "obtain licenses to perform the copyrighted content on which its business relies." While the administration can't tell the court how to rule, the briefing is likely to set the tone for the hearing, set for April.
The brief claims that Aereo "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."
At stake with the Supreme Court hearing is Aereo's ability to capture the broadcasters' free signal by using a single antenna per subscriber in a geographical area, and stream it to users at a nominal subscription fee. Should Aereo prevail in the Supreme Court, it will see fewer court battles nationwide, and larger freedom to operate without pressure from broadcasters in markets it enters. The brief calls out the common servers used, which serves to invalidate the "individual antenna" protection that Aereo has prevailed on in other court battles, save one.
Today's amicus brief believes that Aereo's rebroadcasting is a public performance, and as such, requires a retransmission agreement between Aereo and the original broadcaster. However, it admits that "members of the public may legitimately acquire and use physical equipment (e.g., an improved television antenna) that enhances their ability to receive broadcast programming, and may privately perform [rebroadcast or stream] their own lawfully-acquired copies of copyrighted works [to their own devices]."
The administration does attempt to limit the damage to innovation its brief may cause. It says that "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."