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Justice Backs Broadcasters in Aereo Challenge

In a big boost for broadcasters in their challenge to Aereo, the U.S. government has weighed in on their side, saying Aereo violated copyright.

That is according to the Solicitor General's office brief to the Supreme Court Monday, which represents the Obama Administrations' Justice Department stand on the issue of whether Aereo is simply providing remote access to free TV and home taping rights, or is a violation of copyright protections.

"Under the 1976 Act, a company that retransmits copyrighted broadcast television programs must obtain a license, though qualifying retransmission services may avail themselves of the detailed statutory licensing schemes established by Congress," said the SG in the brief. "Respondent’s unauthorized Internet retransmissions violate these statutory requirements and infringe petitioners’ public-performance rights under 17 U.S.C. 106(4)."

The SG's office also agrees with broadcasters that the Supreme Court can rule against Aereo without calling into question the entire cloud storage regime.

"[A] decision rejecting respondent’s infringing business model and reversing the judgment below [the Second  circuits' denial of an injunction against Aereo] need not call into question the legitimacy of innovative technologies that allow consumers to use the Internet to store, hear, and view their own lawfully acquired copies of copyrighted works."

As far as the Justice Department lawyers are concerned, Aereo's service is a public performance of copyrighted material, not private remote access.

The solicitor general recused himself from the brief. Current solicitor general, Don Verrilli, while an attorney with the firm Jenner & Block, represented film and TV studios in the Grokster case, which established that “companies building businesses based on the unauthorized distribution of copyrighted works can be liable for inducing infringement,” according to a Justice Department bio of Verrilli.