Solicitor General Asks to Argue Aereo Case at Supreme Court

Justice Department move would represent an extra step to support TV Networks views of infringement

The Justice Department is taking an extra step to bolster its support of  TV networks in their U.S. Supreme Court case argument that Aereo is illegally retransmitting local TV station signals.

U.S. Solicitor General Donald B. Verrilli Jr., who previously filed a friend of the court brief siding with broadcasters, is now asking to be allowed to argue his view endorsing TV networks stance during high court oral arguments in the case April 22.

The court has yet to make a decision about the request. Cory Andrews, an attorney for the Washington Legal Foundation, which has filed its own friend of the court brief in the case, told TheWrap the move was not that unusual.

He said in about 50 percent of cases where the government files friend of the court briefs, it gets time to argue its view. Sometimes the government asks for the time. Other times the court asks the government to act.

Also read: Aereo and Networks Get Their Day in Supreme Court: April 22

In originally siding with broadcasters including ABC, NBCU, CBS, and PBS who have claimed that Aereo is engaged in copyright violation, Verrilli said that Aereo transmission of broadcasters signals over the web amounted to copyright infringement.

“Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas, respondent does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals,” he said in the brief.

“Rather, respondent operates an integrated system — i.e., a “device or process” — whose functioning depends on its customers’ shared use of common facilities. The fact that as part of that system respondent uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content ‘to the public.’

“Like its competitors, respondent therefore must obtain licenses to perform the copyrighted content on which its business relies.”

Also read: U.S. Solicitor General Supports Networks in Aereo Fight

Aereo has claimed that because it uses antenna farms with thousands of individual antennas and each antenna serves an individual household, it is not retransmitting TV signals and doesn’t have to pay retransmission fees. TV networks including ABC, NBCU, CBS, and PBS have claimed that Aereo is engaged in copyright violation.

In the brief, the solicitor general said Aereo is violating copyright law and has to obtain retransmission consent.

“The Copyright Act’s broad, technology-neutral definitions make clear that respondent’s system of individualize digital transmissions constitutes a ‘device or process” for communicating the performances embodied in television broadcast to the public,” said the brief.

It suggested Aereo’s argument that it isn’t engaged in retransmission is not a “natural reading” of  telecommunication laws because it isn’t using a single antenna “would afford talismanic significance to precisely the sort of technological minutiae that Congress intended to treat as irrelevant in crafting” telecommunications laws.

“Respondent identifies no reason why Congress would have wanted to countenance such a loophole.”

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