Court Stands Athwart History Yelling “Stop Aereo”

How ridiculously backward can the Supreme Court be? Never more so than when it weighs in on technology, which it ought never be allowed to do. Today shows you all you need to know.

A majority of these super-powered old timers issued a decision that attempts to give new life to the 1950s invention called television, just as the Internet age is in the process of displacing it with something better.

The decision is called U.S. Broadcasting v. Aereo. It was decided 6-3, with Scalia, Thomas, and Alito dissenting (and it is a brilliant and blistering dissent!).

Aereo is the beautifully disruptive service that provides consumers with a means of streaming any television content through an internet device. It is a subscription service. It’s amazing, and it points to the future. Just as Netflix began by broadcasting movies in a more convenient way, and is now producing real content, Aereo was taking that step too with regard to television.

With every great innovation, there are those who cry foul play. No entrenched industry wants to be challenged much less displaced. But that’s the way the market works, and that’s also what’s fabulous about it.

But a majority writing for the court has decided to side with the entrenched television broadcasters. Of course the case involved copyright. Aereo, we are told, enabled consumers to watch programming that the copyright act reserves exclusively to those who produce the content.

Reading the decision is painful. It’s as if these cave dwellers have never heard of torrents, file sharing, and the many thousands of streaming sites that festoon the whole of the world wide web. They tediously march through the words of the law, seizing on terms like “perform,” and then announce with preposterous gravity that Aereo stands in violation of the law.

Of course the decision changes absolutely nothing about the trajectory of history other than to require that Aereo somehow figure out how to pay off the old-time broadcasters, delay the signal, or otherwise assert greater control over what consumers do with its product. In other words, the Supreme Court is trying to mandate a deliberate degradation of an innovative consumer service.

What’s more disgusting about this, which Judge Scalia points out in the dissenting opinion, is that Aereo violated no copyright at all. Consumers may or may not have — and I really don’t care either way because watching something one would otherwise not have watched does not constitute any kind of theft, stealing, or taking. Programming is an infinite good, not a material good that you can steal via consumption.

Blaming Aereo for what its consumers do is like penalizing a paper company because I write on it a copyrighted poem, or nailing Samsung because I passed on a trade secret on a phonecall. The technology and the company that makes the technology cannot be held liable for how its consumers use it. To claim it can is actually a tremendously scary prospect.

So what’s really going on here? The Supreme Court has weighed in on a fight between two sectors of industry over future market share. It set out to pick one winner and one loser and sided with the incumbent sector that is probably going to die anyway.

Scalia’s dissent recalls the case from 1984 in which the Supreme Court came within a hair’s breadth of making video cassettes illegal (Sony v Universal Studios). Actually Scalia is more accurate: he uses the word “contraband,” suggesting that he and his team understand that the law has limited power to change the way history pans out. Technology takes its own direction regardless of what the Supreme Court says.

The Sony case almost went the other way. Can you imagine? How might the government had enforced a ruling that prohibited the manufacture of video recording technology that consumers might misuse? It would have required the total state, at least, and certainly would have set back the information age just as it was dawning. Fortunately, we were spared that fate due to a 5-4 decision against entrenched industrial interests (and all the archives show that it almost went the other way).

Back then the disgusting television industry claimed that all video recording had to be destroyed or else every manner of disaster would meet the industry, which would in turn harm art, civilization, and the American way of life. They claimed the same pile of baloney in the Aereo case too.

As Scalia sensibly writes, “We are in no position to judge the validity of those self-interested claims or to foresee the path of future technological development.”

Exactly! Which is why the Court never should have heard this case. So why did it? Because the case extends from really bad law, namely copyright law. There is no way to enforce copyright law in a way that doesn’t eventually come to interfere with the progress of industrial development, since so much of that development is about finding easier ways to discover, distribute, and reproduce information.

This case demonstrates the awful truth about copyright. It is a system of monopoly privilege over the expression of ideas that enables government to stop consumer-friendly economic development and reward uncompetitive and legally privileged elites to fleece the public through surreptitious use of coercion.

If you took this newest decision seriously, every manner of storage device, recording device, and streaming technology would come under question. The court assures us that this is not what it has in mind, and that industrial progress is still unharmed. But the dissent is more correct here: for this decision to be applied will involve another decade of wrangling, lawsuits, payoffs, grafting, and mutual recrimination — all of which comes at the expense of consumers.

And regardless, nothing changes the fact that television is going to have to adapt itself to the age of the internet. The Supreme Court, in the end, cannot save their bacon. Even with Aereo, there is still advertising, and perhaps more than ever. You just have to get creative.

There is a lesson in this idiocy. The Court should keep its paws off technology, and the same is true of Congress, the Presidency, and the whole state apparatus. Technological development requires freedom from all these birds of prey.