Which brings us to Justice Scalia, one of the nine people who will make this important decision about where said industry goes. And this was the exchange yesterday (via New York):
JUSTICE SCALIA: Mr. Frederick, your client is just using this for local signals— MR. FREDERICK: Yes. JUSTICE SCALIA: —right now. But if we approve that, is there any reason it couldn’t be used for distant signals as well? MR. FREDERICK: Possibly. JUSTICE SCALIA: Possibly what? There is possibly a reason, or it could possibly be used? MR. FREDERICK: It can’t be used for distance, but it implicates— JUSTICE SCALIA: What would the difference be? I mean, you could take HBO, right? You could carry that without performing. MR. FREDERICK: No, because HBO is not done over the airwaves. It’s done through a private service.
I’ve told this story before, but sorry, it’s applicable: As a ten-year-old kid, one of my most marketable skills was the ability to set up a VCR (they were these machines where you recorded things to tape, and — oh never mind). So when my dear sweet grandmother and grandfather bought their first VHS deck, I came over to hook it up, and to show them how to use it. The program of choice was the latest home game for Grandma’s beloved Wichita State University Shocker basketball team. When the game started, I showed her how to hit record. A few minutes into the game, I noticed that her game-watching, which was usually boisterous and energetic, peppered with “Hot dog!”s and “Atta boy!”s, was oddly passive. She hadn’t said a word, in fact. I shot her a confused look, and she responded, in a heavy stage whisper, “Does it record everything we say?”
It’s a cute story of old-people technological cluelessness, but here’s what’s important: my grandmother wasn’t charged with ruling on the Betamax case. Maybe Scalia’s total ignorance about a 40-plus-year-old service whose primary defining characteristic is its status as a premium channel isn’t worrisome — maybe it’s just his well-known slant towards Originalism. (He won’t watch any channels the Founding Fathers didn’t watch!) But it does seem like the people who make these decisions should have some remote idea of the real-world implications of said decisions. Then again, for the Supreme Court, that’s not exactly the way the game is played these days.