I wasn’t expecting my last post to pick up so much traffic. I had no idea that SCOTUS tech ignorance was news to other people, and although I do love making fun of judges at any appellate level, my write-up was more geared towards punching down that awful Mashable article. But the takeaway for most people was the ignorance of the justices — which, to be fair, is pretty astounding.
Both Brian Fung over at the Washington Post and Tim Lee at Vox have already made this point, which was perhaps buried in my original post: tech savviness is a secondary consideration when deciding cases like these. This is the Supreme Court, not the Apple Genius Bar. The important thing about Aereo is how it fits into the pre-existing universe of copyright case law, and how Supreme Court precedent will affect existing and future technologies, not how Aereo in particular actually works.
Of course, it could be pretty bad if the justices literally did not understand how Aereo works. I don’t think this is the case. After all, the briefs made it as clear as possible, and Clement and Frederick both spent time talking about Aereo’s technology during oral argument.
In fact, Clement (counsel for the broadcasters) went through this drawn out analogy about valet parking that kind of went nowhere and landed very poorly — but part of why it landed poorly was that the analogy didn’t say anything about whether Aereo should or shouldn’t be legal. All it did was elaborate how Aereo is different from other kinds of services. I think Clement might have been braced for endless and painful explanations of technology, and thought this was what oral arguments would focus on. I’d bet that Clement himself had a rough time understanding Aereo’s technology, and this very analogy might have been the one that made it clear to him. But the justices didn’t really care — they had read the briefs and they understood the tech well enough to move onto the actual legal issues that matter.
And that’s all that’s needed. A justice doesn’t need to know how to code, or the names of every cloud service in existence in April 2014, or whether or not HBO is a distant signal. There are certain technical details that can make or break a correct legal understanding, but as long as the judge and the attorneys are careful, no one is going to make a stupid mistake.
That is, of course, a HUGE caveat. If it were better known in the federal judiciary that “incrementing a URL” is incredibly common and simple to do, Weev would not have spent time in prison.
In the copyright context, one might worry about details like the role and frequency of temporary copies in streaming. If you don’t know jack shit about how streaming works, you might make the terrible error of penalizing a service for hosting temporary copies. (Fortunately, provisions giving temporary copies slack are codified in several relevant portions of the law, but this issue pops up way too often for my personal comfort).
Another thing I often think about is how § 1201 isn’t meant to cover technological protection measures (aka DRM) that are not “effective.” So what do we say about 7 lines of code that can circumvent DRM? Is that DRM still “effective” under the statute? And how is a tech-ignorant layperson supposed to judge whether a mechanism that can be broken with 7 lines of code is ineffective or not? When each side trots out its experts — one side saying that 7 lines is nothing and the DRM is clearly ineffective; the other side saying that the number of lines is no indication of how easy the solution is — what frame of reference are you supposed to lean on to figure out who to believe?
I disagree with Tim when he says that cluelessness is good. I do get his broader point: the Supreme Court is a court of generalists, and we don’t necessarily want specialists to be calibrating huge general legal systems for the entire population. Indeed, just look at the Federal Circuit and what they’ve done to patent law. (E.g., it is now a shitshow). That’s what can happen when you give people who “aren’t clueless” broad power over a legal system. The judges on the Federal Circuit come from a bubble of specialists, and their sensitivity towards broad public interest considerations is going to be different than if they came from a larger pool of generalists.
But when it comes down to it, I think tech-savvinness can’t hurt. Having a little background knowledge about the new digital reality of people’s day-to-day lives helps fill in the gaps without having to pore over the briefs, helps one’s intuition to go off with that gut feeling of “Hey, this would be weird” a lot faster.
I do worry that SCOTUS tech-unsavviness is going to be a problem. But in the case of Aereo, I think the attorneys and the justices did their due diligence. My feeling from oral arguments is that they got it. They understand where Aereo fits in the copyright universe, they understand the preceding cases that have given rise to this particular case, they understand that this case could have broad unintended consequences. Yesterday I was most impressed with something Breyer said — he talked about the first sale doctrine in oral arguments. First sale! In a case that has nothing to do with first sale! Breyer knows that as our media consumption shifts to streaming and the cloud, consumer rights as embodied in ownership of physical copies are being degraded. Breyer is on the money and I have my fingers crossed that he’ll write the opinion for this one.
But you know what? I still don’t think that Breyer knows shit about computers.
I’m just not super bothered by that.
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I agree that the Justices’ tech savvy is not the most important aspect. What does concern me is if they get enough to be able to make the necessary distinctions under copyright law and, more importantly, whether they get the broader context of copyright in the digital age. On that score, only Breyer has engaged in this in anything approaching a meaningful way. One only hopes that he can swing enough votes to his side so he can author the majority, as opposed to the dissenting, opinion.