Comment by burnte | Hacker News Reader

Comment by burnte | Hacker News Reader

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One would think, since SCOTUS said since Aereo walks, talks, and acts like a cableco, then Aereo is also available to license rebroadcast rights under the compulsory license clause, as cablecos are.

That said, I think Aereo is wonderful, but blew it in oral arguments before SCOTUS. I've never heard such a pathetic display as in this case. Example:

Chief Justice Roberts served up Aereo a softball with this statement, "I mean, there's no technological reason for you to have 10,000 dimesized antenna, other than to get around the copyright laws."

To which the lawyer's reply started with "Well." Right there the case was lost. Rather than answer this way, "Well, the point of the copyright laws, though, Your Honor, shouldn't turn on the number of antennas..." He should have replied:

"On the contrary your honor, we do it this way to _adhere_ to copyright law. The entire point of our service is a remote antenna and DVR service, and in order to do that and comply with copyright law, we have to have thousands of individual antennas. To do otherwise would violate the letter and the spirit of the law, and we have chosen instead to abide by it and provide a very specific service, we provide a rented, individual conduit. We are not duplicating cable systems, we are simply lengthening the wire between the consumer and their individual antenna."

But no. He started with a weasley sounding answer and blew the case. Aereo deserved to win, and could have. I hope Aereo goes the compulsory license route. Broadcasters can't both claim Aereo is a cable company and thus must buy licenses, and that Aereo isn't a cableco and isn't eligible for a compulsory license.

First off, I think we were all exceptionally happy with our counsel. It's easy to look at these things from the outside and say "Hey, I'm a smart guy. Here's how I would have argued it"... but the reality is that it just isn't that simple.

As for the answer... Justice Roberts asked for a _technological_ reason. He fully understood the _legal_ reason, even if he didn't necessarily agree with it.

"Justice Roberts asked for a _technological_ reason."

But counsel didn't answer (from what I'm reading, if I'm wrong please correct me obviously) with a technological answer.

If I say to you "speed isn't important to me so why should I get an SSD drive instead of a hard drive" you need to answer that question in a way that the person asking says "ok they've answered my question".

There was no technological reason. Aero exists solely to comply with the letter of copyright law, and, I believe, they do. (As did Scalia, Thomas, and Roberts).

As it turns out, complying with the letter of the Law, was not sufficient to win their day in court.

Ben Thompson, in his awesome daily update to subscribers, did a great constitutional law analysis of the case (In addition to being a Technology analyst, he also majored in Constitutional Law)

A small excerpt (I highly encourage you to sign up for his daily update at http://stratechery.com, it's frequently the highlight of my day)

You will note, of course, that the author of this decision was none other than Justice Breyer, and the author of the dissent one Justice Scalia. What Justice Breyer has effectively argued is that the sort of activity that Aereo is engaging in was clearly the sort of activity that Congress was seeking to legislate in the Copyright Act of 1976. And, quite frankly he’s right.

Scalia, on the other hand, argues that Aereo is abiding by the letter of the law: they have carefully implemented a solution that abides by the Copyright Act of 1976’s prohibition on public performances (your own private antenna!), and that is enough to make it legal. You can see the different doctrines clearly in Scalia’s admission that Aereo is exploiting a loophole.

"There was no technological reason."

Ok stipulated. But under the "every man for himself", um, "doctrine" the attorney should have made a more noble effort even if it ended up in failure. [1]

Kind of the related a bit to the "better to be thought a fool than to open your mouth and remove all doubt". Here give it a try the best you can. [2] In this case an answer was needed to the question. Not a white house dodge. Stipulate it didn't exist. Doesn't mean he couldn't have creatively offered something that at least attempted to pass the smell test. And I don't think that would have been disrespectful either.

[1] At the very least to burnish his reputation.

[2] Isn't that what attorney's do? Try to win the case even against all odds with a "guilty" client? Buy being creative?

I actually agree with you in the "Don't Dodge" part. He could have saved everyone time and effort by just saying, "No. The particular configuration of equipment at Aero exists solely so that they abide by the law, and, in fact, they do abide by the law, obeying all relevant statutes regarding transmission."

There was no need to start with a "Well" when it was abundantly clear that Aero is basically a very clever hack on the legal system, which, unfortunately, ran into some justices who don't care so much for the letter of the law, as they do the spirt of the law.

> (As did Scalia, Thomas, and Roberts)

Actually, if you read Scalia's dissent, you'll see it's much narrower than that. The only question before the Supreme Court was whether a preliminary injunction should be granted because Aereo was directly infringing the copyright holders' rights. He argues (and I agree) that Aereo couldn't have been directly infringing because playback of a recorded program was under the control of the user, and therefore Aereo does not commit a volitional act in playing it back. They could still be committing indirect infringement, and indeed Scalia explicitly admits that they probably are. That question is before the lower court, but the Supreme Court was not asked to review it.

I don't think the holding turned on the number of antennae at all. Nor is oral argument very important in appellate practice.

I disagree. The lower federal appellate courts, which hear appeals as of right, don't even hear oral arguments on cases that can be easily decided on the briefs. The Supreme Court rarely hears such cases: if a case was easy to decide on the briefs, the Circuit Court below would have clearly resolved it. Oral arguments are particularly valuable in cases like this one: where the law is clear, but the facts are ambiguous. Should Aereo be viewed like essentially a long antenna, or like essentially a cable service?

I agree that they could have done better on this point (and I've upvoted you).

What I don't agree with though is that your answer hit the hot button. At least in the way the justice was "lob-lawing" the ball. The softball was "no technological reason .... other than to get around the copyright laws". Word "tech" is important. That's what you have to hit first.

Consequently, Aereos's "loblaw" [1] should have said something that started out with "the technological reason is your honor that..." and then found some angle that dovetailed with the thought behind the scotus brain asking the question. Perhaps ending with the other rehetoric but not distracting from the intended answer.

[1] For those who don't know: http://arresteddevelopment.wikia.com/wiki/Bob_Loblaw

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