Readers may recall the interesting case involving a company called Aereo that was marketing a small antenna that can be connected to your mobile device. That antenna was linked to an transmitter at Aereo that picked up programming that is being broadcast over the air by the TV networks. In other words, you can watch broadcast TV anywhere without a TV and can even record and save the programs for later viewing. TV stations sued, saying that these retransmissions were violating their copyright.
The US Supreme Court today ruled 6-3 against Aereo, threatening to put the company out of business.
The broadcasters had warned that if one company was allowed to avoid those fees, others — from Dish Network to DirecTV — surely would follow. That would risk billions of dollars in revenue that broadcasters plow back into creating new programs. Retransmission fees brought in an estimated $2.37 billion in 2013.
Aereo had argued that it differed from cable and satellite services because each subscriber is assigned an individual, dime-sized antenna, often stored on rooftop circuit boards. But a majority of justices saw those antennas as just a way around copyright laws.
Aereo argued that since they gave each subscriber a unique antenna, what they were doing was not a ‘public performance’ and thus did not require them to pay a license fee to the TV stations the way that cable companies do. The majority disagreed, saying that Aereo was taking advantage of a loophole in the law to avoid paying TV stations for their content.
The three dissenters had an interesting take on the case arguing that it was not the job of the court to fix flaws created by the legislature.
Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented, arguing that Aereo successfully exploited a loophole in the federal Copyright Act.
“It is not the role of this court to identify and plug loopholes,” Scalia said. “It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that … in a much more targeted, better informed, and less disruptive fashion that the crude ‘looks-like-cable-TV’ solution the court invents today.”
The reason this dissent is significant is that some people have challenged Obamacare’s federal health exchange insurance subsidies given to states that decided against setting up their own exchanges, saying that a technical reading of the law did not allow for that. If that case goes to the Supreme Court, this issue may return. If the court says those federal exchange subsidies are not allowed by a strict reading of the law and rejects them, this could throw the entire program into jeopardy since Congress is not likely to revise the law to correct that flaw.
If courts reject laws simply because of flaws in the writing of them, there would be chaos because those laws are often done in a hurry. This is why courts do not go simply by the letter of the law but also by the intent of the legislators as can be discerned in the debates during passage. If this case ends up in the Supreme Court, it will be because four justices thought there might be at least an ambiguity in the wording of the law. At the hearings and in the filings, look for all the congressional records of the debate over Obamacare to be dragged out and closely examined.