4 ms·

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 ho

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.

larrys 12y ago
"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".
- ghshephard 12y ago
  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 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.
  - larrys 12y ago
    "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?
    - ghshephard 12y ago
      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.
  - ScottBurson 12y ago
    > (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.

larrys 12y ago

"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".

ghshephard 12y ago
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 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.
- larrys 12y ago
  "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?
  - ghshephard 12y ago
    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.
- ScottBurson 12y ago
  > (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.