Yesterday the Supreme Court issued the Aereo opinion and decided
that, given its activities, Aereo is substantially similar to a
cable television provider and therefore "perform[s]
petitioners' copyrighted works 'publicly,' as those
terms are defined by the Transmit Clause [of the Copyright
Act]." The Court was quick to point out, however, that
"given the limited nature of this holding, the Court does not
believe its decision will discourage the emergence or use of
different kinds of technologies."
Justice Scalia, who penned a dissent, noted that "what we
have before us must be considered a 'loophole' in the law.
It is not the role of this Court to identify and plug loop-holes.
It is the role of good lawyers to identify and exploit them, and
the role of Congress to eliminate them if it wishes." Good
lawyers, indeed, likely will be scouring the opinion in search of
new alternatives to accomplish what Aereo was doing, albeit in
another clever manner that may better
