The Glade 4.0

CLEMENT: I do think that in all sorts of places, including the real world there’s a fundamental difference between a service that allows — that provides new content to all sorts of end-users, essentially any paying stranger, and a service that provides a locker, a storage service.

And I think if you want a real world analogy off of the Internet, I think it’s the basic decision — the difference between a car dealer and a valet parking service. I mean, if you look at it from 30,000 feet, you might think, hey, both of these things provide cars to the public. But if you looked at it more closely, you’d understand, well, if I show up at the car dealership without a car, I’m going to be able to get a car. If I show up at the valet parking service and I don’t own a car, it’s not going to end well for me. And so –

ALITO: What is the difference –
(Laughter.)

ALITO: I didn’t mean to interrupt your –

CLEMENT: Well, I was just going to — so I think there is a very real way in which you would say, you know, at the end of the day, the car dealer’s providing cars to the public, the valet parking service is not. It’s providing a parking service.

ROBERTS: Why isn’t — and I don’t want to stretch it too — but why isn’t it like a public garage [and] your own garage? I mean, you know, if you — you can park your car in your own garage or you can park it in a public garage.

You can go to Radio Shack and buy an antenna and a DVR or you can rent those facilities somewhere else from Aereo. They’ve — they’ve got an antenna. They’ll let you use it when you need it and they can, you know, record the stuff as well and let you pick it up when you need it.

CLEMENT: Mr. Chief Justice, that’s not an implausible way to look at this. That’s exactly the way that this Court looked at it in the Fortnightly decision. But Congress in 1976 decided it was going to look at it differently, and it said that if you are providing a service, even if you are providing a service that one could reconceptualize as just renting out antennas that somebody could put on their own house, the person that provides that service on an ongoing basis and in the process exploits the copyrighted works of others is engaged in a public performance.

That is clearly what they were trying to do in the 1976 Act by adding the transmit clause.

ALITO: Well, the Second Circuit analogized this to its CableVision decision. So maybe you could explain to me what is the difference, in your view, between what Aereo does and a remote storage DVR system.

Is the difference — does the difference have to do with the way in which the cable company that has the remote storage DVR system versus the way Aereo acquires the program in the first place? Does it have to do with the number of people who view this program that’s been recorded? What is the difference?

CLEMENT: I think the potential difference, and it’s both the cloud locker storage and this example, I don’t think this Court has to decide it today. I think it can just be confident they are different. Here is the –

ALITO: Well, I don’t find that very satisfying because I really — I need to know how far the rationale that you want us to accept will go, and I need to understand, I think, what effect it will have on these other technologies.

KENNEDY: I had the same question.

Just assume that CableVision is our precedent. I know that it isn’t, but let’s just assume that it is. How would you distinguish the CableVision from your case and how is it applicable here? Assume that it’s binding
precedent. Just that’s a hypothetical.

CLEMENT: Okay. But, Justice Kennedy, I would like to answer both your questions by assuming that the result in CableVision is right, but I don’t have to necessarily buy the reasoning, because I think the reasoning of CableVision is profoundly wrong, so let me circle back to that.

But the reason there’s a fundamental difference between the RS-DVR at issue in CableVision and what Aereo provides is, as Justice Alito alluded to, the fact that there’s a license in the CableVision context to get the initial performance to the public.

And so then I think appropriately the focus in the CableVision context becomes just the playback feature and just the time-shifting that’s enabled by that. And in that context, if you focus only on that, then the RS-DVR looks a lot like a locker service where you have to come in with the content before you can get content out and you only get back the same content.

And here is what really I think Aereo is like. Aereo is like if CableVision, having won in the Second Circuit, decides: “Whew, we won, so guess what? Going forward, we’re going to dispense with all these licenses, and we are just going to try to tell people we are just an RS-DVR, that’s all we are, and never mind that we don’t have any licensed ability to get the broadcast in the first instance, and we’re going to provide it to individual users, and it’s all going to be because they push buttons and not because we push buttons.”

If that were the hypothetical, I don’t know how that wouldn’t be the clearest violation of the 1976 Act.

BREYER: That’s exactly our problem I’m hearing everybody having the same problem, and I will be absolutely prepared, at least for argument’s sake, to assume with you that if there were ever anything that should be held to fall within the public performance, this should be.

All right? I will assume that. I’m not saying it.

But then the problem is in the words that do that, because we have to write words. Are we somehow catching other things that really will change life and shouldn’t, such as the cloud? And you said, well, as the government says, don’t worry, because that isn’t a public performance. And then I read the definition and I don’t see how to get out of it.