I’ve just concluded reading the transcript from today’s arguments in American Broadcasting Companies v. Aereo, Inc., No. 13-461. I’ve not previously commented in detail on court cases here, so I ask any readers to forgive my obvious mistakes, and to politely offer to correct them with a judicious comment.

My first impression is that Justice Sotomayor has no understanding of the operations of Aereo as described in the 2nd Circuit’s opinion in the case. When I had read that opinion, I found that the majority opinion gave a straightforward explanation of Aero’s operations. I tremble that the justice’s lack of understanding may continue to the point of the issuance of a decision.

Paul Clement’s analogy to the difference between the difference between a car dealership and a valet parking service is, in a word, bogus. A valet parking customer has no legal right to any car other than that customer’s. Sony found that TV viewers have the legal right to record and view performances transmitted over the public airwaves for their own enjoyment. Justice Kagan came closest to stating the theory of the case when she states, “But then it really does depend on, like, where the ­­ where the hardware is.  In other words, ­­ if Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance.” (Tr. p. 10) But even she is getting only halfway into the theory of the case. The fundamental issue should be whether the definitions of public and private performance as spelled out by Congress contemplate a difference between Aereo’s rental of an antenna and hard drive space, and a consumer’s doing the same thing with his owned equipment at his home, and how the transmission clause impacts such a difference.

Aereo specifically limits its customer base to customers within the over-the-air viewing area of its antenna farm. This was not discussed enough during argument, and is a key factor that cannot be ignored. For example, the company recently began offering its service in Cincinnati, and the only stations available to customers here are our local broadcast stations. This one fact makes Justice  Scalia’s questions about distant reception irrelevant to this case. The technological limitations of receiving distant transmissions over-the-air mean that to change its business model, Aereo would have to deliberately choose to offer out-of-town channels to its customers, and there is no indication that the company intends to do so. In any case, those hypothetical facts are not before the court.

The crux of Aereo’s argument is that it is renting out an antenna and a DVR that are under the exclusive control of its customer, and that the performance saved on that DVR are viewable only by that customer. The 2nd Circuit majority agreed with the company. Whether the Supreme Court does so is impossible to confidently predict.

I have a bone to pick with the popular press that finds that the case could “forever change the way we watch TV.” If the court were to rule in favor of Aereo, there is nothing stopping any Congress other than our current dysfunctional one from amending the Copyright Act to expressly include “use of non-customer owned equipment to receive or record over-the-air broadcasts” within the meaning of transmission of a public performance. What the Court might giveth, Congress could certainly take away.