Scalia, along with Justices Clarence Thomas and Samuel Alito, disagreed with the majority in the 6-3 decision. Scalia reminds of an earlier high court decision involving a disruptive technology. “We came within one vote of declaring the VCR contraband 30 years ago,” Scalia writes, pointing to the 1984 Universal v. Sony decision. Scalia continues:
I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it.
Hence, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade.