Roger Parloff

[Commentary] Aereo will finally plead its case to the nine US Supreme Court justices who will determine its fate. Since the enactment of the Copyright Act of 1976, retransmitters of broadcast signals have been required to first obtain permission from the broadcasters -- who own copyrights to much of the programming encoded therein.

Congress has enacted elaborate rules dictating how cable and satellite providers can obtain such permission -- sometimes through statutory licenses and sometimes through negotiation. As a result, retransmitters generally end up paying fees for the privilege, and retransmission fees have become a crucial portion of broadcasters' revenue, especially as advertising revenues wane in an Internet-dominated world.

Yet because of Aereo's quirky technology -- which is in many respects less efficient than existing, alternative methodologies -- Aereo claims it can do an end-run around the need to ask such permission. As the broadcasters look at things, then, Aereo "simply captures over-the-air broadcasts and then, without authorization, profits from retransmitting those broadcasts to its subscribers," the broadcasters write in the joint brief, which was authored by a team headed by Paul Clement of the Bancroft law firm and Paul Smith of Jenner & Block.

"This would seem to be obvious copyright infringement -- an entire business model premised on massive and unauthorized commercial exploitation of copyrighted works, where the prices of competitors are undercut because they are licensed and pay fees." The government rejects Aereo's attempt to portray itself as a simple provider of individual antennae and DVRs, stressing its status as "an integrated system."