For once I agree with Tony Scalia (a rare event indeed!). The question before the Court was not whether Aereo should be permitted to keep operating, but simply

For once I agree with Tony Scalia (a rare event indeed!). The question before the Court was not whether Aereo should be permitted to keep operating, but simply whether a preliminary injunction should be granted against it on the grounds of direct infringement of reproduction rights. A decision in the negative would have returned the case to the lower courts for litigation of the remaining questions; it wouldn't have put Aereo in the clear. And I think Scalia is right that Aereo does not commit a volitional act when one of their subscribers plays back a recorded show. By not committing a volitional act, they cannot be guilty of direct infringement. I personally also think that the resulting performance is, crucially, not public. (Scalia explicitly does not address this question.) But this argument appears unlikely to prevail in the end.