• by Wendy Davis  @wendyndavis, March 4, 2014

Siding with TV broadcasters, the Obama administration is asking the Supreme Court to rule that Aereo's streaming television service is unlawful.

“A company that retransmits copyrighted broadcast television programs must obtain a license,” the Department of Justice argues in a friend-of-the-court brief filed with the Supreme Court late Monday. The administration adds that Aereo's unauthorized streams violate the licensing requirement, and therefore, infringe the broadcasters' copyright.

Aereo streams over-the-air television programs to paying subscribers' iPads, iPhones and other devices. The company also enables people to “record” programs and watch them later.

TV broadcasters are suing Aereo for allegedly infringing copyright by transmitting programs without a license. The broadcasters say that Aereo's streams are “public” performances, which require authorization.

But Aereo says it's legal, due to its design, which relies on antennas to capture programs and then stream them to users. Aereo argues that the streams are private, because they're done on an antenna-to-user basis.

The Supreme Court recently agreed to decide whether Aereo's streams are public -- in which case they infringe copyright -- or private. The case has drawn much interest, along with friend-of-the-court briefs from a variety of groups, including the National Association of Broadcasters and Center for Democracy & Technology.

The Obama administration says in its brief it agrees with broadcasters that Aereo's streams are public performances. “Because [Aereo's] system transmits the same underlying performances to numerous subscribers, the system is clearly infringing....Although each transmission is ultimately sent only to a single individual, those transmissions are available to any member of the public who is willing to pay the monthly fee.”

At the same time, the government also says that cloud services -- which allow people to access music, movies or other media on a variety of devices -- don't infringe copyright. “One function of cloud-computing services is to offer consumers more numerous and convenient means of playing back copies that the consumers have already lawfully acquired,” the DOJ writes. “A consumer’s playback of her own lawfully acquired copy of a copyrighted work to herself will ordinarily be a non-infringing private performance, and it may be protected by fair-use principles as well.”

The Supreme Court will hear arguments on April 22, and is expected to issue a decision in June.