Did the justices really understand Aereo?

[Commentary] In siding with broadcasters against Aereo, the Supreme Court resorted to a simple principle: If it looks like a duck and walks like a duck, the law should treat it as a duck, no matter what kind of creature it is. But in doing so, the court threw a legal shadow over a slew of other tech-driven companies.

Writing for the court's majority, Justice Stephen G. Breyer pooh-poohed the technological distinctions between Aereo and cable TV. But as dissenting Justice Antonin Scalia observed, the majority glossed over a crucial detail: Aereo may be providing the equipment, but its customers are the ones transmitting the programs. By shifting responsibility for those transmissions to Aereo because it "looks like cable," Justice Scalia wrote, the court threw into doubt a long-settled principle that technology providers don't violate copyrights just by enabling others to do so. There's been plenty of speculation that Aereo could undermine broadcasters by cutting into or even eliminating the substantial fees they collect from cable operators. But then, as Justice Scalia noted, broadcasters said the VCR would be the death of their industry too. By trying to close a legal loophole that technology enabled Aereo to exploit, the court blurred the boundaries around copyrights in a way that will chill investment and innovation. It would have been far better if the court had let Congress respond to a technological change it couldn't have foreseen 38 years ago.