06/25/2014 06:22 pm ET Updated Aug 25, 2014

Slipperiness Behind Aereo Ruling: Solving Riddles of Legislative Intent and Separation of Powers

Forget -- just for a second, if it is possible -- about tallying up all of the supposed winners and losers in Wednesday's divided U.S. Supreme Court decision in American Broadcasting Cos. vs. Aereo, Inc. That ground already has been thoroughly spaded. The New York Times, for instance, called it "a victory for the major television networks." USA Today concurred, pronouncing "the major TV network owners" and pay-TV providers (cable companies) the winners and, conversely, dubbing Aereo and consumers the losers. Other media outlets have done the same, with Time opening an online article simply with "a victory for broadcasters and a defeat for Aereo." Forget also for a minute about whether capitalism is good or evil and whether it, accompanied by the judiciary, fosters or inhibits technological innovation. Ben Collins thoroughly traversed that terrain in Esquire, opining that

American cable companies and TV networks -- banded-together Comcast, Fox, ABC and others -- have won again, and they've swallowed innovation in the process. Comcast will further shield its cable business, which made $17 billion in revenues last quarter and will gain 11 million subscribers if it is allowed to merge with its largest competition, Time Warner Cable, by the end of the year.

From an admittedly nerdy legal perspective, what actually is interesting about the Aereo decision is the slippery nature of legislative intent and how it sometimes plays a pivotal role in bringing old statutes up to date -- or not -- when new technologies arise that were never imagined or envisioned when those statutes were adopted. In this case, that means deciding whether to bring a law that now applies to cable system operators up to date to include streaming services such as Aereo.

Yes, forget about concepts like corporate greed, cable cord-cutters and consumer choice. Aereo really was all about statutory interpretation of the words "perform" and "publicly" and the legislative intent behind them and other provisions in the Copyright Act of 1976. Boring and dull stuff, but the stuff on which important decisions like Aereo hang.

Examining legislative intent (legislative purpose) and legislative history are traditional methods for interpreting the meaning of language used in statutes, especially when the words at issue are either not defined by lawmakers or when their meanings simply are not plain and obvious. But critical and knotty questions quickly arise in divining legislative intent.

For instance, what documents should be examined? How many views of lawmakers are needed before one can say definitively what the intent behind any bill really was? Perhaps more importantly, how much weight and deference by the judiciary should be given to whatever bits of legislative intent are found in the delicate dance between different branches of government?

How did all of that play out in Aereo? In a nutshell, Stephen Breyer and the six-justice majority concluded that Aereo "performs" copyrighted works owned by the TV networks and that it does so "publicly," thus violating the Copyright Act of 1976. In stark contrast, Antonin Scalia and the three dissenting justices held that Aereo doesn't even "perform" anything to begin with, publicly or privately.

The Breyer majority repeatedly refers to what it considers to be the legislative intent and purpose behind the Copyright Act of 1976. For example, it uses phrases such as "[t]he text of the Clause effectuates Congress' intent," "in light of Congress' basic purposes in amending the Copyright Act," "history makes plain that one of Congress' primary purposes in amending the Copyright Act in 1976," and "when read in light of its purpose, the Act is unmistakable: An entity that engages in activities like Aereo's performs."

Dissenting, Scalia rips into the majority's reliance "on a few isolated snippets of legislative history." Scalia admonishes the majority for treating

those snippets as authoritative evidence of congressional intent even though they come from a single report issued by a committee whose members make up a small fraction of one of the two Houses of Congress. Little else need be said here about the severe shortcomings of that interpretative methodology.

In brief, then, the case pivoted on a dispute about the meaning of words, and legislative intent provided a key variable that, at least on paper, splintered the Court.

Ultimately, Scalia gets it correct when he writes that both sides in the case made self-interested, parade-of-horribles predictions and that the Supreme Court is in no position "to foresee the path of future technological development." It is the job of Congress, not the courts, as Scalia points out, to take up "the task of deciding whether the Copyright Act needs an upgrade" to deal with new technologies like Aereo.

Fathoming legislative intent simply is too subjective and too slender of a reed to support such an important decision and to divide the winners from the losers that others have already sorted out.