Editors Note: This is the second of three Deadline posts that lay out the issues in the Aereo case, which Deadline Legal Editor Dominic Patten will cover from the Supreme Court next week. Today: An interview with former Acting Solicitor General Neal Katyal, who is serving as an adviser to the broadcasters in their case against the streaming service.
On April 22, Aereo and major broadcasters will have their day in the Supreme Court. Broadcasters will say Aereo is stealing their copyrighted material, end of story. The Barry Diller-backed streaming service that launched in early 2012 will say it merely rents antennas to consumers so they can watch TV that’s already available for free over the public airwaves. Both sides will be represented by lawyers who know the Supreme Court well. David Frederick of D.C. firm Kellog Huber Hansen Todd Evans & Figel LLP has more than 40 SCOTUS appearances notched on his belt and will handle defendant Aereo’s arguments. Former Solicitor General Paul Clement, who has argued more 70 cases before the high court, will represent Disney, CBS, NBCUniversal, Fox and the other plaintiffs. He will have a half hour to make his points, unless the Justices give 10 minutes to the current Solicitor General’s office to argue on behalf of the plaintiffs.
Here’s the broadcasters’ argument from Neal Katyal, now a partner at international firm Hogan Lovells, who was picked by President Obama to serve as Acting Solicitor General from May 2010-June 9, 2011.
DEADLINE: So, let’s cut to the chase — what is this case really about?
KATYAL: I certainly think that streaming of the broadcasters’ signals is retransmission and blatantly violates the Copyright Law. Our case is can a company come along and yank broadcast signals out of the air and then package them and sell them to individual subscribers for a fee when the producers of that content aren’t compensated for it? The networks each year spend billions of dollars creating, producing, acquiring and distributing and marketing their content. Aereo is yanking the signals out of the air and selling them to people. So that’s what the case is about.
DEADLINE: Aereo would say that it complies with the Copyright Act and that broadcasters are trying to stem the use of innovative technology and stop the future from happening.
KATYAL: I think this idea that Aereo has some innovative new technology is an absolute red herring. The only thing innovative about Aereo is its legal strategy. It’s not people capturing the signal, its Aereo capturing the signal through antenna and then selling it to the entire American public and it’s Aereo who’s violating the Copyright Law by doing that. What Aereo is doing is grabbing the broadcasters’ signal from the air and then they’re retransmitting it. In 1976 Congress expressly said any device or process that retransmits a broadcast signal without the copyright holder’s permission is unlawful. So to me this is one of the easiest cases the Supreme Court is going to decide this year because it’s something that Congress settled. There maybe a number of interesting policy arguments about how we should have a different Copyright Law, but with respect to the Copyright Law we do have, it’s a very hard argument for Aereo.