Political Discussion: Supreme Court Hears Oral Arguments in the Aereo Case

Arguments were heard yesterday, 4/22/14. I haven't read the full transcript yet, but my impression ain't so hot for Aereo. For instance, Chief Justice Roberts asked (paraphrasing) why Aereo needed thousands of dime sized antennas if the purpose wasn't to "skirt copyright law." What a difference one word makes -- "skirt" versus "follow."

One of the justices apparently thinks there's magic in that dime sized array! He's concerned that Aereo could rebroadcast HBO along with every program transmitted around the globe and charge for it. Maybe someone on the court knows enough about the curvature of the earth to set him straight... Ya think??

We'll learn the outcome in about two months, toward the end of June. :eyes:

Here is the transcript of oral arguments: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-461_o7jp.pdf

Here's Aereo's written brief: http://www-deadline-com.vimg.net/wp...ONSE-BRIEF-MARCH-26-2014-WM__140327015722.pdf



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The "Skirting" the law and "following" the law comparison is interesting, and brings to mind a quote from Judge Learned Hand:
  • Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes.
    • Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934).
The "Skirting" the law and "following" the law comparison is interesting,
I was relying on a third party recount in using the word "skirt." I read the transcript, and Roberts actually used the words "getting around," which is almost as bad, I think. Also, the reference to getting all signals from across the globe was qualified by "almost." Here are the relevant passages:


I mean, there's no technological reason for you to have 10,000 dimesized antenna, other than to get around the copyright laws.
All I'm trying to get at, and I'm not saying it's outcome determinative or necessarily bad, I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. I mean, that's you know, lawyers do that.

But I'm just wondering why [Laughter.] whether you can give me any technological reason, apart from compliance with a particular legal issue, for your technological mind.


JUSTICE SCALIA: What would the difference be. I mean, you could take HBO, right? You could you could carry that without without performing.
MR. FREDERICK: No, because HBO is not done over the airwaves. It's done through a private service...


JUSTICE BREYER: ... what the local antenna person doesn't do but you apparently could do, even if you don't, is with the same kind of device pick up every television signal in the world and send it, almost, and send it into a person's computer. And that sounds so much like what a CATV system does or what a satellite system does that it looks as if somehow you are escaping a constraint that's imposed upon them. That's what disturbs everyone.

And then what disturbs me on the other side is I don't understand what the decision for you or against you when I write it is going to do to all kinds of other technologies. I've read the briefs fairly carefully, and I'm still uncertain that I understand it well enough. That isn't your problem, but it might turn out to be. [Laughter.]

MR. FREDERICK [Counsel for Aereo]: Well, let me address I think I let me try to make it their problem. [Laughter.]


After reading, I'm not any more optimistic about Aereo's chances. I'd put it at 70/30 for the prosecution. I don't think it was fair that the Deputy Solicitor General was allowed to join the broadcaster's lawyer in a two to one-fer against Aereo's lawyer. Then they made it even more unfair by letting the prosecution start, and finish the arguments, with a rebuttal at the end. Sotomayor started right out asking the prosecution (not Aereo) why Aereo isn't a cable company! Prosecution does NOT think they are a cable company, even though that would be a summary judgement for their side. But Sotomayor kept bringing it up, and eventually came right out and said she thought Aereo fit the definition for "cable company." :deadhorse:

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I don't think Sotomayor is that tech savvy. I want to like Sotomayor, but some of her decisions hit a nerve with me - especially her most recent dissent... Equal is equal, damn it. Giving un-natural advantages to ANY group is, by definition, UN-equal.

Best line by Roberts:
I mean, that's you know, lawyers do that.
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It is an interesting a "modern" conundrum. It looks to me like they are just sharing what is already free for the taking..by law.
Aereo's case relies on precedent originally set by the 2cnd Circuit Court of Appeals. The Supreme Court is not bound by that precedent. They're not even bound by precedent set by previous Supreme Courts. But traditionally, they've given great weight to precedents, because the alternative is chaos. Seems to me, whichever way they rule, it's going to cause some chaos in one sector of the private economy or another. I think the Supreme Court is going to ignore precedent this time, because the sectors that will be disrupted are too new to have any lobbyists. "The cloud" is not organized enough yet to put up a fight.

There's a simple solution. A simple way for local broadcasters to reclaim their copyright on the content they broadcast. No STB/scrambling scheme is necessary. They can just say people have to subscribe to gain the right to view their programming. Make it a dollar a year. Put the address to send in your subscription up on screen once or twice a day. Make it clear you have no intention of prosecuting violators, but nonsubscribers are breaking the law when they view that channel.

Poof! Aereo goes up in smoke. But broadcasters don't want to do this, because they fear law abiding citizens will stop watching and decrease their Nelson ratings.