2. That is surely true in Aereo, where the court is genuinely at sea. Oral argument revealed a widespread disposition to view Aereo’s business model as too clever by half — using thousands of tiny “personal” antennas to collect and transmit broadcast television without paying the fees that apply to cable companies who do the same. The justices seem to be struggling to find a way to slap Aereo down without damaging the legal framework that today protects cloud companies like Dropbox from the copyright plaintiff’s bar. The Court seems to be reaching for a creative way out of this predicament. That’s not good, for the third reason:
3. This was an April argument. In fact it was so late in April that the opinion probably wasn’t assigned until the last Friday of the month. That’s important because the court aims to finish its business and go on recess by the end of June. And since there will surely be concurring or dissenting opinions, simple fairness and tradition require that the justices in the minority see the majority opinion by June 1. That means the justice drafting the Court’s opinion has only five weeks both to figure out how to reach the desired result and to produce a detailed opinion that scans the field and explains how its decision fits into that context. That’s a big task, and it can’t be done by starting from scratch, even with the help of a law clerk. The justice assigned the case will have to fall back on briefs filed by interested parties, all of whom drafted their submissions to teach the Court all the copyright law and facts that fit their interests.