ABC v. Aereo: the Supreme Court will reverse the Second Circuit

Tomorrow is the oral argument in the Aereo case.  There is a good reason why the Supreme Court will reverse the Second Circuit. Moreover, it has already indicated that it will do so when it granted cert.

First, the reason for the Supreme Court reversal: the 2d Cir. Opinion in Aereo is “nuts,” as one respected West Coast academic called it last year at the 21^st Annual  Fordham IP conference.  

Of course, there are many more detailed arguments in the various briefs in the Supreme Court.  Moreover, that is not to say that there are no arguments on the other side.  Very clever people have in fact come up with them. In fact, we will go through all the arguments in the last copyright session on Friday, the 25th, of the Fordham IP Conference, April 24-25, fordhamipconference.com 

Second, how has the Court has already indicated that it will reverse when it granted cert.? Justice Alito had recused himself which meant that the Court  was left with a possible 4-4 tie. They could have waited to grant cert. on the 9th Cir. case or ones in the First Circuit or D.C. Circuit.  If there was any chance of a tie, that would have been the prudent thing to do because after a tie they could not let the situation remain where there are injunctions in some areas of the country and not others. They would have to take another case. 

Before risking a massive waste of judicial time, I think the CJ Roberts and his colleagues must have been confident that there were five votes on one side.  The question then is which side.  I don’t see five justices being comfortable enough with the correctness of Aereo’s position on just the cert. papers.   But I can easily see five justices comfortable with voting to reverse before granting cert. 

I told my students, and anyone else who would listen, after the Second Circuit decision came down that the Supreme Court would grant cert. and reverse, assuming no en banc rehearing. Alito’s recusal just makes me even more confident that this will happen.  

HOLD ON! It now turns out that Alito is no longer recusing himself in ABC.  Some might think this indicates he has come back to break a tie.  I don’t think so.  He has also rescinded his recusal in POM Wonderful v Coca Cola.  There was no tie issue there as Justice Breyer had also recused himself leaving only seven justices.  In fact, by rescinding his recusal Alito has made a tie possible in that case.  (The Court is very likely to reverse the 9^th Circuit In POM Wonderful, with no tie likely.)  In any case, when the Court granted cert. in Aereo they did not know Alito would rescind his recusal. So I think my analysis stands.

I have a pretty good record on predictions.  I don’t predict every case but when I do I have only been wrong once, in New York Times v. Tasini, 533 U.S. 483 (2001).  In Grokster, MGM Studios, Inc. v. Grokster, Ltd., 45 U.S. 913, after the District  Court for the Northern District of California  found for Grokster in in 2003, I stated at the next Fordham IP Conference that I hoped that the 9^th Circuit would affirm because then the Supreme Court would grant cert. and reverse.  After the 9^th Circuit obliged me and affirmed, I guaranteed in a talk at the annual meeting of the Copyright Society of the U.S.A., that the Supreme Court would grant cert and reverse.  At the time I encountered numerous people skeptical about the ability to predict the Supreme Court, and my Grokster predicition in particular.  As a result, I had numerous bets for steak dinners related to my prediction with a variety of copyright players including ones from EFF, the Copyright Society, the International Intellectual Property Alliance, and a former congressman from northern Virginia.  So far, no one has paid up.

If the Supreme Court does not reverse the Second Circuit, it would mean that there has been a serious disturbance in the Force.  I don't expect that will happen..

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