The Supreme Court struggles to find an analogy for Aereo

[Commentary] The Supreme Court pondered whether or not Aereo is engaged in the impermissible public performance of copyrighted material or whether it was doing, well something else.

And that seems to be the rub; the court seemed to struggle with exactly how to categorize what Aereo is doing. More specifically, the Justices tried to do what all lawyers do: find an analogy that helps them fit the facts of the present case into the factual bucket of a prior case.

There are two, strong potential prior case candidates: Sony Corp. v. Universal (Betamax) and Cartoon Network v. CSC Holdings (CableVision). In the Betamax case, the Supreme Court decided that Sony did not violate the copyright laws by selling a video recording device to an individual who used the device to record video transmissions or play back material that may or may not have been illegally copied. The CableVision case -- decided by the Second Circuit and therefore not binding on the justices – involved the use of a remote storage digital video recorder or RS-DVR.

The Second Circuit relied heavily on its own CableVision case in deciding in favor of Aereo, but both the Tenth and Ninth Circuits rejected similar arguments. So now it’s up to the Supreme Court to figure out what exactly is Aereo. Is it Betamax or is it CableVision?

Like all Supreme Court oral arguments there was something for everyone. There did seem to be emphasis on Aereo’s lack of payment of royalties at any point of the distribution -- a different business model than CableVision or Netflix. This might be the easiest way for the justices to distinguish Aereo from the Second Circuit’s CableVision case.

[Boliek is an associate professor of law at Pepperdine University School of Law]