The Big [Censored] Theory

It doesn't matter. The Supreme Court's logic was "sure, every individual part of this is completely legal, but if you consider it as a black box, it feels like a different thing which is illegal, so we're going to treat it like it's illegal thing." That conclusion was pretty likely, but it's utterly baffling to someone who thinks about the law like a programmer.

To put it in the Supreme Court's exact words: "Given Aereo’s overwhelming likeness to the cable companies targeted by the 1976 amendments, this sole technological difference between Aereo and traditional cable companies does not make a critical difference here."

I always liked Antonin Scalia’s dissent in that case.

“We came within one vote of declaring the VCR contraband 30 years ago in Sony [v. Universal]. The dissent in that case was driven in part by the plaintiffs’ prediction that VCR technology would wreak all manner of havoc in the television and movie industries. The Networks make similarly dire predictions about Aereo. We are told that nothing less than ‘the very existence of broadcast television as we know it’ is at stake. Aereo and its amici dispute those forecasts and make a few of their own.… We are in no position to judge the validity of those self-interested claims or to foresee the path of future technological development. Hence, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands…”

Oh totally. Scalia's copy shop analogy was spot on, and the majority's rebuttal was just "this is more like a video on demand service than a copy shop" was weak as heck and just goes back to their main "shut up about how it works we know what we're looking at" argument.

> it's utterly baffling to someone who thinks about the law like a programmer.

Programmers seem to think about the law like a program, like a set of rules governing system behaviour and so long as they are not directly violated, this one neat trick judges hate will let them do whatever it is without recourse. But that's not true, firstly because the law is fuzzy and deals with human behaviour, including taking wider views, intent and mitigating circumstances into account, and secondly taking decades or centuries of established case law into account too.

It's why things like "smart contracts" are not the end run around the judicial process that their creators would like...

I think Scalia is right in this descent, but applying the same textualist logic to many other decisions he made doesn't make nearly as much sense. In other words, his textualism leads to a lot of "there's no rule that says a dog can't play basketball" type decisions.

Does a specific example come to mind? I've generally been a big fan of the opinions he writes, but I'd be interested to see what some of his weaker opinions are.

I understand that point of view in general, but in this case the only thing making the service a violation in the first place was one dumb trick. I would argue that Aereo was doing their best to remove technicalities.

The ruling also managed to make the law even more inconsistent. If I rent an antenna and install it in a datacenter for TV, that's kosher. If I rent an antenna and pay someone else to install it in a datacenter for TV, that's a copyright violation.

I guess that's where intent comes in? It looks like a technical workaround with the same end result...

But also I won't deny the copyright owners have done a great job in making the law do exactly what they want it to, nothing more and nothing less.

> Hence, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands…

Ah, the old "we're here to talk about laws, not justice" argument.

Castle Rock v Gonzales is probably one of the worst. After a woman with a protective order against her abusive husband was ignored by the police after he abducted their children sued the police department, Scalia basically ruled that police have no duty to do anything to help anyone. Even in a case where you have a court protective order that says the police "shall arrest" someone who violates the order.

The woman reported her children kidnapped and showed the order to the police and they refused to do anything and said she should just wait and he would probably come back.

The man showed up at the police station a day later with her 3 children, dead.

So now we have the precedent that even in the most extreme and obvious cases, police have absolutely no duty to uphold their oath.

Thanks Scalia.

This case was decided 7-2, so clearly it wasn't just Scalia. Generally speaking, when decisions are supermajority, it's because that's what the law and precedent really say. And the precedent that law enforcement doesn't have a "duty to protect" long predates this case, so it's not really surprising.

In general, it's worth keeping in mind that the point of courts is not to decide whether the outcome of the case is ethically or socially desirable. They're there to look at the laws and precedent and figure out how it applies to a given case. If the result is undesirable, it's something for the legislature to fix.