Aereo is a video streaming service that allows subscribers (at around $8/month) to view live, over-the-air programming via the internet. The service also includes DVR-like capabilities, allowing for the recording of live programming to be watched later. Shortly after Aereo’s launch last year, other television providers (think major networks) sued, claiming that the service violates the networks’ right to publicly perform their copyrighted material.

The Court rejected Aereo’s argument that the company is merely an “equipment provider” and sided with the television providers (with Justices Scalia, Alito, and Thomas dissenting,) saying that the heart of Aereo’s service involves a public performance of copyrighted material.

Justice Scalia’s dissent characterizes the majority’s reasoning as “guilt by resemblance,” saying that Aereo’s service differs from other services that the Court has previously held offer public performances of copyrighted material:

The rationale for the Court’s ad hoc rule for cable-system lookalikes is so broad that it renders nearly a third of the Court’s opinion superfluous. Part II of the opinion concludes that Aereo performs because it resembles a cable company, and Congress amended the Act in 1976 “to bring the activities of cable systems within [its] scope.” Ante, at 8. Part III of the opinion purports to address separately the question whether Aereo performs “pub- licly.” Ante, at 10–15.

Trouble is, that question cannot remain open if Congress’s supposed intent to regulate whatever looks like a cable company must be given legal effect (as the Court says in Part II). The Act reaches only public performances, see §106(4), so Congress could not have regulated “the activities of cable systems” without deeming their retransmissions public performances.

The upshot is this: If Aereo’s similarity to a cable company means that it performs, then by necessity that same char-acteristic means that it does so publicly, and Part III of the Court’s opinion discusses an issue that is no longer relevant—though discussing it certainly gives the opinion the “feel” of real textual analysis.

Although the case has been remanded back to the Second Circuit for additional argument, it’s a safe bet that you should work your way through those episodes of 24 you’ve been stockpiling.

Farewell, Aereo. We hardly knew thee.

You can read the opinion in American Broadcasting Cos. v. Aereo, Inc., here.