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This week, the U.S. Supreme Court recently heard oral argument in the ABC vs Aereo case, concerning whether a company can broad TV signals to customers over the internet without paying licensing fees. A relevant precedent is the CableVision case where the Second Circuit Court of Appeals ruled that CableVision could operate a remote DVR service without paying additional licensing fees. Now since this was only an Appeals Court decision, it's not an absolutely binding precedent that the Supreme Court has to follow. But Justice Kennedy still asked one of the lawyers (arguing in an amicus brief against Aereo) this hypothetical question:

How do you want us to deal with CableVision -- the CableVision case in the Second Circuit. Again assume it's binding precedent. Just assume that.

Deputy Solicitor General Malcolm Stewart said this in response:

My answer would be ... that the reasoning of Cablevision, if you really adhere to [the reasoning in the case] ... then it's hard to see how you could rule in favor of our position here. But as far as the bottom line outcome of Cablevision is concerned, you could accept [our] position and still say CableVision was decided the correct way.

This seems like an odd argument to me. The Supreme Court follows the doctrine of stare decisis, or "let the decision stand". It means that by default, the Court has to respect the precedent of its past decisions. This doctrine isn't absolute, however, the Court can and has made decision in violation of stare decisis when it saw a sufficiently compelling reason to overturn past precedent.

So I can understand if Stewart was just arguing that stare decisis should be violated in this case and that the reasoning in the Cablevision case ought to be overturned. But in addition to that, he's saying that as a consolation, the new reasoning that the court would be adopting would still have decided the Cablevision case in the same way. How is that in any way a consolation? Is it somehow considered a lesser violation of stare decisis if the outcome that a case would have had is still preserved, even if the reasoning which yields that outcome is no longer recognized?

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No, it isn't considered a lesser violation of stare decisis if the outcome that a case would have had is still preserved

SCOTUS is under no obligation to follow court precedence set in the Cablevision case, because that is a lower court, the second circuit. Stare decisis only applies to the same court or lower court than where the decision was made.

In the United States and England, the Common Law has traditionally adhered to the precedents of earlier cases as sources of law. This principle, known as stare decisis, [...] once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.

If you read the full transcript, the justices were just giving a hypothetical instance, where they asked if the Cablevision decision was correct, why should they rule differently in this Aereo case. Mr. Stewart argues that CableVision had a license to the broadcast the original work, in the Aereo case, they don't have a license. (Frederick is arguing that they don't need a license, because they are just capturing content on the public airwaves, and their service is essentially renting and antenna and DVR)). So Stewart is arguing that the courts decision in this Aereo case would not change the decision that was made in the Cablevision case, precisely because Cablevision had a license to broadcast the original work.

JUSTICE KENNEDY: How do you want us to deal with CableVision ­­ the CableVision case in the Second Circuit? Again assume it's a binding precedent. Just assume that.

MR. STEWART: My answer would be the same as Mr. Clement's, that the reasoning of CableVision, if you really adhere to the idea that the only trans-- the only performance that counts is the individual transmission, and ask does that go to more than one person, then it's hard to see how you could rule in favor of our position here. But as far as the bottom line outcome of CableVision is concerned, you could accept the government's position and still say CableVision was decided the correct way because ­­precisely because CableVision had a license to perform in real time, to broadcast the program to its subscribers. The only thing that was at issue was the supplemental RSDVR service. And the court in CableVision appropriately, we think, held that the recording of those programs by the subscribers who were already entitled to view them in real time was fair use under Sony and the playback can reasonably be characterized as a private performance of their own content.

  • I did mention that it wasn't binding precedent and that it was a hypothetical scenario: "Now since this was only an Appeals Court decision, it's not an absolutely binding precedent that the Supreme Court has to follow. But Justice Kennedy still asked one of the lawyers (arguing in an amicus brief against Aereo) this hypothetical question:" – Keshav Srinivasan Apr 30 '14 at 1:02
  • But in any case, in responding to the hypothetical question, Stewart said that the reasoning in the Cablevision case would not be preserved if he got his way, but that the outcome that have been arrived at would still be the same. Why is the second point worth mentioning at all? Is it somehow less bad, as a matter of jurisprudence, to preserve what the outcome would have been while overruling the reasoning used, rather than overruling both? – Keshav Srinivasan Apr 30 '14 at 1:06
  • @KeshavSrinivsdan, what exactly isn't clear to you? No, there is no less bad caused by overturning a lower courts decision based upon bad reasoning not supported by the law, but still reaching the same conclusion. The 2nd Dist. overturned all 3 elements of the lower courts ruling. The DVR buffering was transitory in nature, the recording were initiated by the users and not Cablevision, and the playback wasn't public but was limited to the user who requested it. Stewart is arguing that the CableVision decision is correct, but that Cablevision had a license to broadcast the original content. – user1873 Apr 30 '14 at 1:21
  • I'm not talking about the 2nd Circuit overturning the district court ruling. I'm talking about the Supreme Court overturning the 2nd Circuit ruling if Clement and Stewart gets their way. Why would Stewart mention that even though the reasoning that the 2nd Circuit used would be thrown out, the outcome that would have occurred would still be the same? Why is that latter fact worth mentioning at all? – Keshav Srinivasan Apr 30 '14 at 15:51
  • @KeshavSrinivasan, It doesn't matter if that is what you are talking about, that is what Justice Kennedy, Stewart and Clement are talking about. Stewart/Clement are trying to assure the justices that cloud computing will not be in danger by the courts decision in this case. – user1873 Apr 30 '14 at 17:57

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