Aereo: Guilt By Resemblance

Posted By on Jun 29, 2014 | 0 comments

As I’m sure all of our readers are by now well aware, on Wednesday, the Supreme Court held, in a 6-3 ruling in ABC v. Aereo, that near-live transmissions of broadcast television signals in Aereo’s system are public performances by Aereo.  I’ve been hampered in posting by the fact that I’m on the road in the very rural west (currently Waterton Lakes, Alberta), with limited time, and even more limited internet connectivity.  (Hence, uploading the Court’s holding, adding relevant links to this article, and analyzing the Court’s holding and implications in detail will have to wait for a future time.)

Needless to say, this was a deeply disappointing ruling, not because it was especially important that Aereo prevail—many of you will recall that we’ve previously questioned the practical viability of Aereo—but because the ruling represents an abrogation of the Court’s responsibility to impartially interpret the law, rather than to simply make new law of its own volition, and because the majority’s obviously results-driven holding ultimately makes a mess of what could have and should have been a very clean interpretation of the law as actually written.  (An interpretation that might have produced a result that left many unhappy, but which, nonetheless, would cleanly comport with the actual text of the Copyright Act, and which, of course, Congress would be free to address in the proper policy-making fashion, if it was troubled by the implications of the actual text.)

The essence of the majority holding is as simple as this: Congress intended the 1976 Copyright Act to bring cable systems within the purview of the public performance right.  Aereo is so similar in function to a cable system, Congress surely would have intended to treat it like a cable system, and so it must be deemed to also involve public performance, regardless of what the actual text of the Copyright Act that Congress passed says.

They then proceed to provide an analysis intended to support that result, but which suffers serious flaws, and which ultimately will be very problematic to reconcile against their suggestion that the holding won’t endanger other technologies (which they apparently deem to be “good”).

My current internet connection does not want to cooperate with the writing of a more detailed analysis.  So for the time being, I’ll need to leave it at that, and at the suggestion that everyone take time to read the holding for themselves, and in particular, to read section III of Justice Scalia’s dissent, “Guilt By Resemblance,” which makes many of the key points of how the majority analysis badly fails.

I shall hope to find time, and better internet connectivity, to post a more detailed summary and analysis of the holding sometime next week.