Aereo Can't Be Bound by Secret Interpretations of Copyright Law

Here's what the Deputy Solicitor General of the United States had to say during Tuesday's Aereo Supreme Court argument when asked directly whether a ruling might throw the United States out of line with international agreements:

We haven't made that argument. We ­­ we believe that existing U.S. copyright law properly construed is fully sufficient to comply with our international obligations. But that ­­ that doesn't mean that we think that whenever a court misconstrues the statute, we will automatically be thrown into breach. It's certainly possible. But if this case were decided in Aereo's favor that some of our international trading partners might object, but ­­ but I'm not going to take the position that we would concede those objections had merit, so we're not making that argument.

It may seem like a wishy-washy answer, but there's an alarming point nested within it: the Solicitor General's office's position that the interpretation of the law—which the executive branch has worked into our international trade obligations—is the only way for the law to be "properly construed."

That in turn suggests that the executive branch believes it is responsible for properly constructing the law. Of course, that position stands in conflict with Marbury v. Madison, the case that established judicial review in 1803: "It is emphatically the province and duty of the judicial department to say what the law is."

That has serious implications for the democratic process. Here's how it seems to work: the executive branch comes up with an interpretation of U.S. copyright law and then negotiates it into international agreements. It conducts these negotiations in secret, insisting that it needs no meaningful oversight because it doesn't require a change in U.S. law.

But that claim is dangerously wrong on at least two counts. For one thing, we've seen plenty of examples where U.S. trade negotiating positions differ significantly from established domestic law. One notable recent example comes in the draft of the Trans-Pacific Partnership (TPP) leaked last November. It includes language limiting importing goods that included copyrighted components. That runs right up against recent Supreme Court precedent in the Kirtsaeng case.

Perhaps more troubling, though, is that U.S. positions on trade often treat disputed interpretations as established law. The government then turns around and claims that those interpretations are immutable because they've been crystallized into international agreements. Because these policy laundering negotiations happen in secret, there's no real opportunity for lawmakers and public interest groups to spot these invalid interpretations.

As a result, not only can the executive branch lock in its own interpretation, but established industry players can also capitalize on the uncertainty of the situation. That's on display in the broadcaster's brief from this case:

In seeking to avoid providing that compensation Aereo seeks to upend not only our own copyright law, but also our compliance with international obligations. The United States is a signatory to and has been a driving force behind multiple international agreements that enshrine the same broad and technology-neutral public-performance right that the transmit clause was designed to protect.

Companies like Aereo that develop new technology, then, are under pressure to comply not only with the letter of U.S. law, but also with the version that is negotiated into existing agreements and, presumably, in agreements that are not yet finalized, like the TPP and the Transatlantic Trade and Investment Partnership (TTIP).

Should the Supreme Court side with Aereo, the broadcasters and their supporters in this case may push for Congress to act, telling the legislative branch that the executive's interpretation was more important—and more binding—than the court's.  In that sense, it serves as a vehicle for policy laundering—the practice of pushing policies through forums with less oversight, typically international agreements, in order to get them adopted domestically.

It is absolutely undemocratic for laws, or official interpretations of those laws, to be held secret. This issue is most prominent in the legal landscape surrounding surveillance, but it is just as applicable when it comes to copyright. As Justice Breyer has said, "If it isn't public, it's not a law. [...] That