Wednesday, June 25, 2014

Quick thoughts on the Aereo judgment, more to come

I'll give a more full post imminently, but my initial thoughts

  1. The majority opinion is policy, not law. It's telling that they never once reference the prior precedent, Cablevision, except to note that it was the prior precedent. That means they're not giving any meaningful guidance, which is what you do when you're trying to reach a targeted result.
  2. Justice Scalia is 100% right: the Court's ruling replaces widely-accepted rules for service-provider liability with an improvised standard of "looks like cable TV".
  3. There is no reason to limit this reasoning to cable TV. Although the Court takes great pains to say it's not ruling on cloud computing or any other technology, I'm not talking about technology. I'm talking about a method of legal reasoning. If "looks like cable TV therefore is regulated like cable TV" is the test for determining the scope and ambit of a law, then why stop with cable TV? "Uber looks like a taxi therefore it should be regulated like a taxi and be forced to get medallions.". "Food trucks look like a restaurant therefore they should be regulated like a restaurant and be forced to provide restrooms."

Like I said, more to come, but especially #3 concerns me.

SOURCES:
Aereo judgment http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

1 comment:

  1. #3 was what had me worried. This is a HUGE opening to some pretty innovation-stifling focus. The only good note I see is that this same logic could be applied to allowing the FCC to make rules regarding the regulation of the Internet. The argument against the rule regarding net neutrality was that the Internet is not a regulated utility. This very ruling (above) seems to make the opposite statement, and that if it looks like a utility, then it should be regulated like one. Anyone think the Internet doesn't look like a utility?

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