"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.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is email@example.com.