The big problem with the majority decision is that it was cobbled together from disparate ideas. Justice Breyer quoted small statements made from two congressmen from one party that were on a subcommittee in one of the two houses of the legislature as proof of the intent of the whole body when they drafted the copyright act. They; took a piece from one section of law, combined it with other pieces of other sections, stated that the Supreme Court never looks at particulars of technology, and then stated that they didn't believe that anything of what they said would end up being used against anything other than Aereo or someone who copied what Aereo was doing. The reasoning was very convoluted. I listened to a couple of podcasts in which none of the lawyers could actually make real sense of the decision. With all of the disparate items used in the decision, despite the majority's desire to limit the decision to Aereo, I believe that many lawsuits will be filed based on those disparate convoluted statements.
The dissent was pretty reasoned and concise. Scalia stated that what Aereo was doing should not be legal. However, he said that technically they were following the law. He stated that it is the job of congress to plug any loopholes in the law that congress sees fit to plug, and it is only the job of the courts to interpret whatever congress is able to pass.
There was some wording in the majority decision that roughly said that even though the consumer was directing the equipment as to what to tune into and what to record, that Aereo was in fact transmitting the programming. Fox's complaint uses that language and states that Dish, not the consumer, is transmitting the signal from the Hopper to the consumer. Dish does have a license to transmit to the consumer, but Fox is claiming that there is no license to transmit from the consumer's device to another location. I would think that Dish would win easily, but the majority decision in the Aereo case makes me believe that the actual wording of the law matters less than whatever the courts think the law should have been.
Well, what is troubling about the decision is that it seems a piece of so called "judicial activism" that both the left and right of the Court seem to engage while one side accuses the other of exclusively doing so. In the decision, the majority went to the point of supposing the intent of Congress, and this is not necessary in a case that involves copyright law, not a matter regarding a Constitutional question involving, say, the Bill of Rights, where one would no choice but to take the presumptuous position of considering the "Founding Father's" intentions to some degree in ruling in the context of the modern world.
Instead, this was simply a matter of Copyright law, a matter left to Congress, especially since this case involved technology and processes that, while technically legal, was something Congress could not have anticipated when the law was passed, but can easily amend the law to directly or even more broadly address Aereo's unique process, hardly the notion of interpreting the Constitution that can not be so easily changed to address changed in technology.
The minority, all conservative judges, ruled on the facts and the law even if Aereo's technological process seemed something of a contrivance to "get around the law", (something Scalia believed, as you put in your post and I subsequently learned myself) but the result was nonetheless meeting every attribute necessary to meet the notion of "private performance, "personal and private," and such service being initiated by the user (I suppose in the law, they refer to this as "tests"). DONE, one would think. If the media companies or Congress don't like it, they can change the copyright law as Congress sees fit. The mostly liberal majority affirmed the sad notion that the left leaning judges do, in fact, practice "judicial activism" (and when they see fit, the right leaning Judges do so, as well) by trying to be Congress in attempting to know what Congress's intent was when passing the Copyright law. This was recently passed legislation and Congress is still alive and well to change any bit of it, not requiring the Supreme Court to get in "Congress's head," a completely unnecessary (but often practiced) exercise because copyright law is not a 200+ year old document that truly requires interpretation of such words and even intent if one is to rule on a matter in the modern era, nor does changing copyright law require the long and difficult process to change that the Constitution does.
And this is why the lower courts ruled in favor of Aereo, or rather the Areo's attributes meet what is necessary to NOT be violating the copyright law passed by congress. The lower courts, correctly, did not wade into the notion of trying to figure out the intent of Congress, but simply ruled on the facts knowing that Congress can change Copyright law anytime time it wants to forbid or allow anything it wants whenever Congress feels like it. The Supreme Court went that often slippery step further rather then allowing Congress to make clear what its intentions were, as Congress only know what that is, NOT the Supreme Court.
Now, the Court has just added confusion with its Judaical Activism rather than clarity or certainty, one of the key roles of the Supreme Court. Despite the claims of the Court that this ruling should not be taken to address several other similar services nor those involving the emerging "cloud," their ruling now does bring legitimate questioning of matters thought resolved such as MSO's offering DVR Cloud storage services, and a lot of other cloud services for that matter. If the Court were going to presume Congress's intent, they should have gone all the way in Judicial Activism and just LAID IT ALL OUT for us. Now, we have to endure the Supreme Court having to reject quite a number of new challenges, with no one but Congress knowing Congress's intent.
Finally, even if the majority just couldn't help themselves but rule as they did, they should have been more mindful of the confusion to follow and the reanimated (thought to be dead) issues and previous lower court cases and rulings, and just, properly, left it up to Congress to fix, while still making it clear they (the Court) don't think Areo "should" be legal, as per Scalia. Instead the Court adds something of a feeble footnote about not reading more into their decision than some would like, but that is pretty much what plaintiffs and their attorneys always do.
Even if the Court had ruled on favor of Areo, I think the NAB would have been successful in getting legislation passed to kill Areo simply because NAB has deeper pockets and always (but once) gets its way and hardly enough of the public use Aereo to create public outrage, but at least it would have proceeded as it should have, for Congress to decide, for better or worse. Now, Congress is off the hook and just let the whole thing die. A lot of lawyers are gonna make a lot of money with renewed court cases challenging lower court rulings that were thought matters settled.
