Droney pressed the point, asking "How is this in any way actually different? Aren't they seeing the same third-down-and-three play?"
And Chin asked, "Does that make any sense?" People "are watching a football game through AEREO and that's not a retransmission?"
"As a matter of common sense, is it at all logical that the 25,000 people watching are watching an individualized copy?" he asked.
Hosp responded, "If you are talking about a streaming service—that is a public performance" but AEREO is not a streaming service.
On rebuttal, Smith told the court that Congress made the law as broad as possible to prevent retransmission and adopting AEREO's reading of Cablevision would gut the statute.
Keller closed by saying the plaintiffs were not asking the court to overturn Cablevision.
AEREO, he said, "sells our broadcast, our performances, to its subscribers."
The case captions on the appeal are CBS Broadcasting v. AEREO, 12-2807-cv, and WNET, et al v. AEREO, 12-2786-cv.
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