Aereo has some formidable new opposition in the courts. According to Deadline, the White House has recommended that the Supreme Court rule against Aereo when broadcasters bring its service to trial this April. The administration made the recommendation in an amicus brief filed today, which argues that Aereo's use of discrete antennas to record broadcast television for its customers does not change the fact that it is later retransmitting those recordings to the public. "Like its competitors, [Aereo] therefore must obtain licenses to perform the copyrighted content on which its business relies," reads the brief.
Aereo has largely succeeded in the courts so far
Broadcasters have brought Aereo to court over its refusal to pay retransmission fees on copyrighted content — a fee that Aereo says should not apply to it. Rather than licensing content and transmitting it out to a number of customers, Aereo captures the content through an individual antenna for each customer and will only allow its customers to control and interact with their own specific stream. It offers the service for a monthly fee, and as an obvious threat to broadcasters, they've quickly brought Aereo to court.
Now the White House too says that Aereo ought to be paying these retransmission fees. For one, it argues that Aereo's service cannot be considered to truly handle each stream individually for several reasons. It points to Aereo's use of a centralized server to actually transmit those streams back to viewers, and to Aereo's reuse of antennas between customers. Rather than permanently assigning each customer an antenna, Aereo offers access to a pool of antennas that are reassigned to each customer as they sign on and off of the service.
Other concerns have centered on whether Aereo's transmission of content is a public performance, and the White House writes that Aereo is "plainly engaged" in creating public transmissions. It lays out a number of reasons that its activities fall within the Copyright Act's definition of a public performance — in particular, pointing to language in the law that specifically accounts for public transmissions over devices that had not yet been developed. Accepting the Copyright Act's language as interpreted by Aereo, the briefing says, "would afford talismanic significance to precisely the sort of technological minutia that Congress intended to treat as irrelevant."
While the White House's amicus brief is only one among what will almost certainly be many, it may be enough to temper Aereo's expectations going into the trial. So far, Aereo — like the broadcasters that oppose it — has been eager to get the trial over with. It's confidently contended that its service is legal as it currently operates, and for the most part it has had success backing that up in the courts to date. The matter should be settled in the not too distant future, but it's clear that the case is hardly settled yet.