June 25, 2014

"It is not the role of this court to identify and plug loopholes."

"It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes."

Wrote Justice Scalia, dissenting in ABC v. Aereo, today's Supreme Court case finding a copyright violation in capturing broadcast signals with antennas and streaming the contents to paying subscribers (who are perfectly free to use their own antennas to capture broadcast signals).

17 comments:

Anonymous said...

Scalia is, once again, correct.

The Godfather said...

It's a wonderful piece of rhetoric -- as I would expect from Scalia -- and as a generality it's correct. I'm not sure that it's correct in THIS CASE.

Michelle Dulak Thomson said...

I agree absolutely. Aereo clearly ought to have won this case.

CWJ said...

Exactly, Writing law is similar to if not identical to a contract of adhesion. The writers have every opportunity to make sure the details work. Those subject to the law had little on no role in its drafting. If it has unintended consequences, whose fault is that. It should be obvious that you shouldn't hold people accountable for the law the authors could have written but didn't.

One person's loophole is another's following the law. This is a bugaboo of mine. Calling something a loophole is an excuse for lazy writing, or worse drafting a law or regulation to solve a problem that was too complicated to legally control in the first place.

rcommal said...

Scalia loves lawyers and lawyering. Full stop.

Bob R said...

I like the outcome of the case, which doesn't mean the decision is right, of course. I like the principle that Scalia stated, and maybe if the court got together and gave congress a kick in the butt, it would work out better in the long run. But after all, making laws about copyright, patents, and trademarks is an explicitly enumerated power, so it's not like they could try to do a better job of it.

Matthew Sablan said...

In short, like Roberts said, "It is not our job to protect the people from the consequences of their political choices."

Peter said...

A difference between law and the hard sciences is, the law does not have to make sense.

Thus, radio stations have to pay to play copyrighted music, even though the copyright owners depend on airplay and greatly benefit from it.

And Aereo must pay for carriage because cable companies pay. Even though carriage greatly benefits the broadcaster by increasing the number of viewers the broadcaster has (which translates directly into higher ad rates). In general, it's in a business's interest to provide something whenever the marginal revenue derived from that something exceeds the marginal cost to provide it- which is surely the case here, where the marginal cost (to the broadcaster) is zero.

BUT: to a broadcaster, a cable viewer (ad revenue + carriage fee) is worth more than an over-the-air viewer (ad revenue only). Therefore broadcasters don't want Aereo to exist, because they're afraid that Aereo may induce cable subscribers to cut the cord, thereby trading more valuable viewers for less valuable ones.

Yet the only reason this is so is because the law that forces cable companies to pay for carriage makes no sense.

SO: Scalia is indeed right: the law may be an ass, but it's the law nonetheless. And the Constitution surely doesn't prohibit passing or enforcing a law merely because the law makes no sense.

eddie willers said...

Though the Majority tried to square the circle and limit this ludicrous decision to only the Aereo case, the genie is out of the bottle.

This will get the lawsuits slinging left and right and you'll wonder, "Jeez...what happened to the Internet?".

It will also freeze technologocal improvement.

Who will now invest billions in what is a perfectly legal (and better) technology if nine robed people can wave their hands and wipe you out?!

[Ann...does this skate close to ex post facto or is that only in criminal cases?]

Kieth Nissen said...

Scalia's remark is very good but it's hard for me to see anything good coming out of a decision favoring Aereo. I haven't seen anyone mentioning the print corollary; if a writer's work is printed in a free "throw-away" publication does that mean all copyright claims are waived? can then any broadcaster or publication use the writer's work without permission? obviously not.

eddie willers said...

if a writer's work is printed in a free "throw-away" publication does that mean all copyright claims are waived? can then any broadcaster or publication use the writer's work without permission

If the government gave you the office, supplied the paper and pens in exchange for demanding that you give away your product to the public for free, I'd say "Yes".

That was the deal the networks struck when they got their free spectrum.

Aereo sent only that which was free to all with a decent antenna.

They supplied the antenna.

timkb4cq said...

No, but any person can collect the copies of the "throw away" publication and send those authorized copies on to others.
That's the correct analogy to what Areo was doing. They were using one antenna per subscriber to deliver the broadcast over the air signal to that one subscriber. Scalia understands what law actually says. Unfortunately, six other members of the Supreme Court believe the law's text matters less than the unfairness of that law's outcome for Areo when compared to the quite different laws cable TV companies must abide by.

rcommal said...

FTR, the SCOTUS decision is, in fact, my preferred outcome, all things weighed.

rcommal said...

Eddie Willers:

What's put on the networks is not solely and entirely put on by the networks. That would be a difference with a distinction, I think. What think you?

rcommal said...

I disagree that the point of this ruling had to do with "unfairness" as timkb4cq put it.

eddie willers said...

What's put on the networks is not solely and entirely put on by the networks.

What is broadcast by the network is free to anyone with an antenna. That law is older than anything discussed in this case.

Aereo was not using network feeds or anything like that. Just the same programming if you lived close in and had a good antenna.

rcommal said...

Oh, come on.

Are people really going to maintain that The Networks are as the networks were decades ago?

What's hard to get about the notion that The Networks mostly aren't also content creators any more? That the creation and development mostly has been outsourced to others.

So it's not a matter of just using those old rules by which The Networks of yore had to play. (The Networks of Yore no longer exist.) It's a matter of finding any and every way possible to strip individuals as well as smaller and more medium-er (for lack of a better word, at present) business to claim rights for what they created. Because everyone wants everything to be free!!! (Bad model for life, may I just point that out.)

I am reminded of the lame-o arguments used to justify the theft that was Napster back in the day. And it was theft. However, those arguments were highly effective: They worked, and most importantly because the very presence of the service and the fervency of its supporters changed minds, POVs, contexts, morals and ethics (and, also, legalities).

Freedom became not only less costly, it became freer and even free at that point...

...at least in some ways, and especially for those not paying and clamoring for a justification to consider others' work theirs, just because they want to consume it, for free.

---

I do support Open Source as a worthwhile model, but only as a voluntary thing. What I do not support is Takings as an ethic.