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

By Jonathan Handel, Esq.

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.

Check out ?The New Zealand Hobbit Crisis,? available on Amazon in paperback, Kindle and audiobook. Subscribe to my blog (jhandel.com) for more about entertainment labor. You can also follow me on Twitter or friend me on Facebook. If you work in tech, take a look at my book How to Write LOIs and Term Sheets. 

Full post as published by Digital Media Law on April 15, 2014 (boomark / email).