Will the Aereo Case Force a Rewrite of Communications and Copyright Laws?

Commenting on the significance of the case, Flick said, “Cablevision is a good example of a case where good facts make bad law. It was one where someone said, ‘look, if consumers have the right to be able to record things in their home, what's the big deal? So we move the recorder out to Cablevision headquarters; won't that just allow them to do the same thing they were doing before? What's the big deal?’ The Second Circuit said ‘that seems reasonable to us.’ But technology colliding with the law always creates a slippery slope. If Cablevision's RS-DVR is okay, how much farther can we push it? That's truly what the Aereo case is about.”

Speculating on the outcome, Flick noted, “The long and short of it is that I think when this is all done we will have not only the answer to the Aereo question but I think it will end up fleshing out a lot of other tangential questions with regards to how traditional video distribution is going coexist in an Internet age.”

He added, “The easiest thing in the world for the Supreme Court to have done at this stage, since this is truly not a ripe issue yet, with the trial courts only starting to dive into the technology, is to not take the case and let the facts mature. The fact that there were at least some [justices] that were interested in hearing this I think is probably positive for broadcasters. The negative is that it takes fewer Supreme Court justices to vote to grant cert on a case to get a decision in favor of broadcasters.”