Aereo at the Supreme Court: 5 Takeaways

What worries the justices about the case

Last Updated: August 4, 2014 @ 10:16 AM

The U.S. Supreme Court on Tuesday heard arguments on the broadcast networks’ effort to stop Aereo from beaming their signals online. Nothing about it was simple, but we’ve tried to focus on the key issues.

Aereo uses millions of stamp-sized antennas to send broadcast signals to customers. Those customers pay Aereo for the service, and neither Aereo nor the customers pay anything to the networks or cable companies. That troubles those businesses, because cable providers pay broadcasters billions each year for the privilege of transmitting their shows.

Also read: Supreme Court Justices Criticize Aereo, But Worry About Overbroad Ruling

Aereo cuts them out of the process. The networks call that theft. But the case is even more complicated, because Aereo’s legal justification for its service is a decision that also provides a legal basis for cloud computing — allowing customers to use services like iCloud to store their favorite shows and songs online.

The justices want to avoid crafting a decision that will affect not only Aereo, but also your right to keep Katy Perry on the cloud.

Also read: Why Aereo’s Supreme Court Case Matters

It’s also hard to say what the justices are actually thinking, because they often ask questions just to play devil’s advocate and root out weaknesses in both sides’ arguments. But here are five takeaways from the arguments in the case.

1. Chief Justice John Roberts questioned Aereo’s business model — but also TV networks’ arguments.

Roberts wondered if the company’s use of millions of tiny antennas to relay broadcasts was anything but a way to exploit loopholes in copyright law.

“If your model is correct, can’t you just put your antenna up and then do it? I mean, there’s no technological reason for you to have 10,000 dime-sized antenna, other than to get around the copyright laws,” he said, adding that his question was not “necessarily determinative or bad” for a court decision.

He was also tough on the networks.

“You can go to Radio Shack and buy an antenna and a DVR or you can rent those facilities somewhere else from Aereo. They’ve — they’ve got an antenna. They’ll let you use it when you need it and they can, you know, record the stuff as well and let you pick it up when you need it,” he said.

2. Justice Ruth Bader Ginsburg questioned why Aereo wasn’t paying rights fees.

“If every other transmitter does pay a royalty — maybe it’s under compulsory license — and you are the only player so far that doesn’t pay any royalties at any stage,” she said.

3. Justice Elena Kagan questioned why Aereo was different than a DVR and an antenna.

“If Aereo has the hardware in its warehouse as opposed to selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not?” she asked.

4 . The justices don’t want their decision to reach to the clouds — or cloud.

Several justices worried about issuing an overbroad ruling could affect unrelated tech services in which consumers and businesses buy and store music, backup files or content online.

“Are we somehow catching other things that really will change life and shouldn’t, such as the cloud?” Justice Stephen Breyer asked.

Aereo’s lawyer told the court that tech companies are “freaked out” by the potential for a ruling that would force them to start examining the legal rights for every file they store.

5. The judges are worried about opening too many doors. 

Breyer worried about Aereo creating a device that could “pick up every television signal in the world and send it into a person’s  computer. Justices Ginsburg, Antonin Scalia and Sonia Sotomayor also raised questions about content beyond local stations.

“Your client says this is just using this for local signals right now. But if we approve that, is there any reason it couldn’t be used for distant signals as well?” said Scalia.

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