Tuesday, April 15, 2014

Aereo to Face Uphill Battle in Supreme Court Next Week, Experts Say (analysis)

Next week’s Supreme Court argument will be difficult for cable-competitor Aereo, legal experts agree, as the company faces off against not just broadcasters but also the influential U.S. Solicitor General’s office and the Copyright Office. While it will be a tough fight for the company, the case is so complex and the copyright and communications statutes so intricate that one advocate said the decision could end up as lopsided as 7-1 – in either direction.

The only expert willing to offer a prediction, Akin Gump’s Pratik Shah, said “I think a majority of the Court will be skeptical of Aereo’s position and thus likely to rule in favor of the broadcast-petitioners,” while another – who spoke on background and supports Aereo – put the odds in the broadcasters’ favor at 60-40 or 70-30.

And yet, only two Justices’ votes – those of Ruth Bader Ginsburg and Steven Breyer – are predictable with any confidence (“this is not a conventionally political case,” noted Georgetown’s Rebecca Tushnet), and even an awkward 4-4 tie is possible, because one Justice, Samuel Alito, is recused from the case for unknown reasons. That uncomfortable outcome would leave in place a welter of conflicting lower-court decisions, which ratify Aereo and similar services in some parts of the country and outlaw them in others.

Aereo, you’ll recall, is an $8-$12 per month Internet service that lets users watch or record broadcast TV using a PC or cellphone.

For a detailed analysis, see more at The Hollywood Reporter.

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