By Kevin ("The Swami") Goldberg, CommLawBlog, June 27, 2014
The Supremes have spoken, and now it's the Swami's turn.[Blogmeister's Note: As we have already reported, the Supreme Court has reversed the Second Circuit in the Aereo case, giving the TV broadcasting industry a major victory. Yes, that's the result that the Swami, Kevin Goldberg, had predicted. So we asked him to review the two opinions out of the Supremes -- Justice Breyer's majority opinion and Justice Scalia's dissent -- and let us know what he found. Here's his report -- but note that we are dispensing with our routine summary of what Aereo is and how the case got to the Supremes. If you're just getting to the Aereo party now and don't know the background, check out our extensive Aereo-related coverage at this link. And if you want to see Kevin talking about Aereo, check out his appearance on LXBN TV.]
As I observed following the April 22 oral argument in Aereo, for the most part the Justices on the Supreme Court can't really be described as "tech savvy". Nothing in either the majority or the "dissenting" opinion changes that. (Why the quotes around "dissenting"? We'll look at that below.)
But the Justices' seeming unfamiliarity and general discomfort with New Technology may be a good thing. The Court appears to have taken care to limit its Aereo decision to areas with which it is familiar. And it also tried hard to make sure that its decision will not disrupt what it believes it knows about new media such as cloud computing.
Let's take a look at Breyer's majority opinion (which was joined in by Chief Justice Roberts and Associate Justices Kennedy, Ginsburg, Sotomayor and Kagan), and then the dissent by Scalia (writing for himself and Justices Thomas and Alito). Then I'll field some questions that I've been frequently asked.