NEW YORK (TheStreet) -- No one can argue that Supreme Court justices are mostly a very smart group, an ensemble packed with Harvard and Yale law grads and legal writings which scholars regularly parse for insights and guidance.
But Anton Scalia's comment at the hearing Tuesday in the case of ABC v. Aereo, calls into question whether these folks are really the best judges of a case that is as much about content ownership as it is about consumer behavior.
Scalia, in peppering Aereo attorney David Frederick, appeared not to know that HBO can't be accessed over-the-air in the manner of broadcast networks such as Disney's (DIS) ABC, CBS (CBS), and Comcast's (CMCSA) NBC.
Mr. SCALIA: 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.
Scalia's apparent unfamiliarity with HBO, which has been around since the 1980s, available only through a pay-TV service, is reminiscent of President George H.W. Bush's curious looks while campaigning in 1992 when he came face-to-face with that technological phenomenon, the grocery scanner.
"This is for checking out?" Bush asked an attendee at the National Grocers Association convention in Washington as reported by The New York Times. "I just took a tour through the exhibits here," he added. "Amazed by some of the technology."
Ah technology. So amazing, so wonderful.
"One should make as much fun of Scalia as possible to make the point about it's so weird that these people are deciding this case," Blair Levin, a former Federal Communications Commission chief of staff currently a fellow at the Aspen Institute, said in an interview from Washington.
But they are deciding it.
So, over the next couple months, we can only presume that Judge Scalia's staff with inform him that HBO is known as a "premium channel," and most folks no longer use rabbit ears to watch TV.
But Scalia's confusion may reflect the pace of technology as compared to current laws on telecommunications, cloud services and copyright. Not surprisingly, technological innovations have moved faster than legislators in Washington.
Chief Justice John Roberts as well as Scalia and Justice Ruth Ginsburg appeared peeved that Aereo had created a business designed in part to skirt U.S. copyright law. And it's quite conceivable that the New York-based start-up headed by engineer and CEO Chet Kanojia accomplished that feat.
"Roberts and some of the other justices told Aereo 'you've completely engineered this thing to get around the law," Levin said. "Well, that's the point. If you comply with the law, it's called being legal."
If Aereo is complying with the law but not exactly how congress intended, the remedy may be with Congress. If that's the case, we can only hope members of Congress know something about HBO.
--Leon Lazaroff is TheStreet's deputy managing editor.
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