American Broadcasting Co. v. Aereo, Inc. (13-461)
argument 13-461American Broadcasting Co. v. Aereo, Inc.
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Your argument next in case thirteen four sixty one, American Broadcasting Companies versus Aero. Mr. Clement.
Mr. Chief Justice, and may it please the Court, ARIO's business model is to enable thousands of paying strangers to watch live TV online. Arios' legal argument is that it can make all of that happen without publicly performing. But Congress passed a statute that squarely forecloses that rather counterintuitive submission. Because although the Internet and the thousands of mini antennas are new, the basic service that Arios providing is not materially different from the service provided by the cable company before this court in nineteen sixty nine.
Why aren't they cable companies? They're not you know I'm looking at the d everybody's been arguing this case as if for sure they're not. But I look at the definition of a cable company and it seems to fit. A facility located in any state, they've got a whatever they have, a warehouse or a building in Brooklyn. The rece uh that receives signal transmissions or programmes broadcast by television broadcast stations. You're taking the signals. off of the I'm sorry, they are. makes secondary transmissions by wires, cables, or other communication channels. Seems to me That A little antenna. With a dime. Fits that definition. to subscribing members of the pub public who pay for such service. I mean I read it and I say, why aren't they a cable company?
Well, just a cinema, a couple of things. First of all, I mean I think if you're if if you're already at that point you've probably understood that just like a cable company, they're public perform they're publicly performing, and maybe they qualify as a cable company, and maybe they could qualify for the compulsory license that's available to cable companies under Section one hundred eleven of the statute.
But this gets it mixed up. Do we have to go to all of those other questions. if we find that they're a cable company. We say they're a cable company, they get the compulsory license.
Well no, there's lots of conditions on the compulsory license. And I think the first place, the reason that we haven't been debating about whether they're a cable company is because they don't want to be a cable company. They have a footnote in the red brief that makes it clear they are not a cable company in their view, they don't want to be a cable company. And I think that's because Coming with a cable company, it might potentially get you into the compulsory license, but it brings with it a lot of obligations that come with being a cable company. But that's why they don't want it. W well I here's the other thing is I think The question is are they? I I don't think they are. That's really ultimately a question under the Federal Communications Act.
But here's why, if I could, I think and Mr Frederick will certainly speak to this if he if if he want him to, but I think the reason they don't want to be a cable company is because I think their basic business model would not allow them to qualify for compulsory license anyways.
But I'd still like to know the answer to the question in your opinion. And of course, if you want a reason, I'll give you my reason. Uh if we take the public performance maybe we run into what Professor Nimmer saw as a problem. Why isn't? A phone what used to be called a phonograph record store. that sells phonograph records. to ten thousand customers. giving a public performance. It seems to fall within that definition. But if it is, there's no no first sale doctrine. And it's a big problem. So we could avoid that problem. Now that's why I'm very interested in the answer, not just what they want.
Well, uh I don't think they are ultimately a cable company and we could debate that question, but it's not the question before you. So maybe I can give you some comfort about why you don't need to decide that question. Right.
And what you have read in their briefs is they and they are supporting a Mikey. have thrown up a series of serious problems not involving them. Like the cloud. Which the government tells us to ignore.
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