Chief Justice John Roberts also questioned if Aereo supplied each subscriber with her own small antenna "solely to circumvent" the public performance provision in U.S. copyright law. Aereo's service looks in many ways like a cable service, which has to pay royalties to networks, he and other justices said.
"You're saying your copy [of a TV show] is different than my copy," Roberts said. "There's a reason they're called copies. They're all the same."
Aereo, like cable providers, is serving "legions of subscribers," added Justice Ruth Bader Ginsburg.
But the Supreme Court wouldn't be having this debate if Aereo rented subscribers a DVR service and TV antennas that were located at subscribers' homes, Frederick countered. The Supreme Court has ruled that DVRs do not violate copyright, and no one would argue that TV antenna makers are responsible for paying royalties for free, over-the-air TV programs, he said.
Aereo is essentially providing the same service, only the antennas and DVRs are located in the company's facilities, he said. The geographical location of the equipment Aereo is renting "can't change the copyright analysis," he said.
Sign up for CIO Asia eNewsletters.