I livetweeted the Oracle v. Google trial from opening arguments to the delivery of the verdict.
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.
So I never expected that post about Mashable and the Supreme Court to be widely read. I wrote it very late at night (I think I made the last edits around 1 am?) after a very long day that began with me waking up at 4 am on a sidewalk in front of the Supreme Court. So 1) the writing isn’t that great and I really could have used a copy-editor; 2) I made some quasi-mistakes — really I think they’re just points that are unclear and could use some longer commentary:
I hate this article (“The Supreme Court Justices, Ranked by Their Tech Savvy in the Aereo Case”).
It’s not just a vapid listicle, the analysis is actually majorly wrong.
To be clear, that entire bench is just not very tech savvy. And neither are the attorneys who come and speak to them. This was evident during oral arguments for CLS v. Alice, when counsel for the petitioners told Kennedy that nearly all software was written in a weekend in a coffee shop and then no one contradicted him.
And in today’s arguments, everyone referred repeatedly to “cloud computing” when they really just mean “the cloud” or “cloud music lockers.” And when I say “everyone” I mean all nine justices plus counsel for the petitioners plus counsel for the respondents plus the deputy solicitor general for the United States government.
When it comes down to it, everyone who’s anyone inside that courtroom is most likely an incompetent Luddite. There’s no point even putting them in an ordered list, except to be arbitrarily unkind to Scalia and/or Thomas by putting them in the bottom. And while making fun of the Supreme Court is a paradigmatic example of punching up, this particular form is not just fruitless, it’s ill-informed.
The Mashable analysis is terrible, and here is why:
1. Sonia Sotomayor
What Mashable had to say: Sotomayor, who was appointed by President Obama, demonstrated a good grip of the technology and some of the nuances involved in the Aereo case. At one point, she asked a lawyer for the broadcasters: “How about Simple.TV or Nimble.TV, which is not quite a hybrid?” Both of those services are newcomers to the scene. She also asked questions about how Aereo relates to other cloud computing and streaming companies, like Roku, iCloud and Dropbox.
The obvious truth of the matter: Sotomayor asked a clerk to draw up a list of cloud technologies. She then read the list the night before. She at least owns a Roku, but it’s not clear how familiar she is with very common cloud technologies — like Dropbox and iCloud. Sotomayor made multiple faux pas, including a reference to “iDrop” and “Netflick.” She also asked whether Roku had gotten licenses needlessly. Answer: Roku does not get licenses [addendum here] and no one knows what the hell she’s talking about.
2. Stephen Breyer
What Mashable had to say: Breyer, a Clinton appointee, was among the most active justices in pushing the debate forward during oral arguments. Speaking to the broadcasters’ lawyer, he was clearly weighing whether a decision against Aereo by the court would set a bad precedent for the cloud computing industry […]
And what does this have to do with tech savvy?: It doesn’t. Breyer’s most compelling hypothetical had to do with FedExing a phonograph. In a similar vein, his favorite hypo for the CLS v. Alice oral arguments had to do with King Tut and an abacus. … Are you starting to see a pattern? Breyer has a wonderfully complete and nuanced big picture of the shift in copyright law and the death of first sale doctrine. That doesn’t mean he understands shit about computers.
3. Anthony Kennedy
What Mashable had to say: Kennedy, who was appointed by President Reagan, posed an interesting question about the line between Aereo being in control, a person being in control, and how that affects the situation. He questioned both sides on how they would align the 2008 Cablevision case’s precedent on cloud storage and playback with their own arguments.
What really went down: Kennedy’s questions were boring. He lacked imagination with respect to the different kinds of services that Aereo would affect. Not that this should be surprising. CLS v. Alice made it exceedingly obvious that Kennedy doesn’t know anything about computers.
4. Ruth Bader Ginsburg
What Mashable had to say: Ginsburg, a Clinton appointee, touched on the “dime-size” antennas of Aereo, as well as the fact that the company pays no retransmission fees. She was quiet at first but came alive to push Aereo’s lawyer repeatedly.
Good goddamn grief: Ginsburg mumbled the entire time and was mostly set on making it clear to the other justices how hard she is going to rule against Aereo. This was no surprise to any of the copyright wonks in the room. Ginsburg tends towards copyright maximalism and in that respect is the least innovation-friendly, least tech-friendly justice in that room.
5. Elena Kagan
What Mashable had to say: Kagan, who was appointed by President Obama, showed a keen understanding at times of the basics of how Aereo works, as well as the broader cloud computing industry. At one point, she asked a question of Aereo attorney David Frederick that compared Aereo to basic cable service […]
Kagan is not even that bad: At this point, Mashable is beginning to underrate, rather than overrate, Justices. Kagan clearly understood the problems at play, at least as well as (perhaps better than) Sotomayor and Breyer did. And better yet, Kagan clearly had certain services in mind when asking her questions (user generated content services like YouTube) while having the forbearance not to explicitly name the service and risk sounding silly like Sotomayor did.
6. Chief Justice John Roberts
What Mashable had to say: Roberts, who was appointed by President George W. Bush, had a moment when he displayed some confusion on exactly what Aereo is, and how existing laws might apply to the company. At one point, Roberts said, “It’d be much easier for you if you’d just have to make one copy and everybody could get a copy.”
Frederick then had to explain that subscribers must go to Aereo to watch TV or begin recording and are unable to access content otherwise. Frederick then had to explain the difference between Aereo and video on demand.
The exchange ended with Roberts illuminating Aereo’s own point in that customers can access broadcast TV only at their discretion but the service does not actually serve content on demand.
Roberts is somewhat known for his lack of technology expertise, once asking the difference between email and a pager.
Yeah sure Roberts is a derp: Roberts is bad at graphs and numbers and all that. See, e.g.,
But guess what? Mashable completely missed the line of Roberts’s argument. It’s not that Roberts didn’t “get” how Aereo worked or why Aereo serves multiple “copies.” It’s that he was trying to get counsel to admit that Aereo was purposefully availing itself of the Cablevision “exception”. Why does Aereo have thousands of antennae instead of just a few? Why doesn’t Aereo engage in extensive deduplication practices? Mashable missed this maybe because Mashable doesn’t even understand that the logic of Cablevision, rather than the facts of this particular technology, is the heart of this case.
7. Samuel Alito
What Mashable had to say: Alito, a George W. Bush appointee, asked one question that demonstrated a nuanced understanding of the difference between Aereo and the Cablevision decision that has been regarded as a precedent in this case, but largely kept quiet during the rest of the oral arguments.
Are you serious?: Given that Cablevision is the most important part of the case, this seems like a pretty damn good question to ask. Another thing to note is that Alito was temporarily recused from this case until he unrecused himself. It’s largely thought that this was because of stock in his portfolio. Stock in which company? A broadcasting company? Aereo? Either way, I’d love to know what he thinks about his (former) investment.
8. Antonin Scalia
What Mashable had to say: The most embarrassing comments of the oral arguments came from Scalia. At one point he indicated that he did not know that HBO is a paid premium cable channel, thinking instead that it is available for free over the airwaves.
Ugh: This is the dumbest fucking part of the list. Here’s the relevant portion of the oral arguments:
If it looks like Scalia is blustering in the transcript — well, he’s not. He was completely cool, he and Frederick were simply trying to talk over each other the entire time.
There is no indication that Scalia thinks HBO comes free over the airwaves. He was referring specifically to distant signals, which is — AHEM — a technical term:
A “distant signal” is a broadcast signal you cannot receive off the air (with a “rabbit ears” antenna) because you’re too far away from where the signal originates. Expressed another way, a local signal can be defined as one that is within a radius of between 40 and 60 miles of a transmitting antenna broadcast depending on its transmitter’s strength. Distant signals originate as over-the-air signals and then are picked up and retransmitted as part of the retransmitter’s basic programming package (like basic cable). That means that programming that originates on specialty and pay television services (like Discovery, ESPN, and TBN) does not generate retransmission royalties. (See Copyright Royalties).
Scalia was feeling out Aereo’s effects on the larger system of broadcasts and transmissions. It’s a complicated system with checks and balances and royalties that have been developed over time. If Aereo is allowed to win, then what happens? His question with respect to HBO was aimed at seeing whether counsel for the respondents could paint a convincingly non-alarming future.
[Edit: A reader pointed out that HBO still isn’t a distant signal under this definition, which is true. So either Scalia doesn’t know which services are retransmissions of distant signals, or if we want to be really charitable, he was glossing over to make a broader point about the spectrum of different kinds of television. It’s probably the former. But to be fair, I bet you didn’t know what a distant signal is, either.]
N/A: Clarence Thomas
What Mashable had to say: As for Justice Thomas, who was appointed by President George H.W. Bush, we have no definite proof he was there, but can assume so because nobody said he was missing. Thomas has not asked a single question at oral arguments in more than eight years.
Well I guess you couldn’t have known, but…: Since the Supreme Court does not stream video, only attendees (*smug look*) could have seen this — Thomas thumbing through the appendices of the briefs, following each citation as oral arguments cited particular pages. Thomas was silent, but he was hyper-engaged.
In conclusion, SCOTUS are not very good at computers, but they are not stupid, either. I wouldn’t want any of them to fix my wi-fi for me, but I am actually feeling okay about them taking a crack at ABC v. Aereo. But anyways, you probably want to know how I’d order a list of the justices by tech-savviness. Well, if I’m sorting by “most willing to allow to fix my wi-fi for me” to “least willing to allow to fix my wi-fi for me” then it would go something like:
The list is front-loaded with young justices. I pushed Sotomayor back because “iDrop” was such an egregious error. Roberts is likely terrible with computers but I am guessing both he and Alito will go for “turn it on and off” much faster than Sotomayor would. I have no idea how Thomas would be around a router, but I have it on good authority that he would take the task much more seriously than Breyer. Scalia is close to last, beat out by Kennedy, who is just entirely too smug to be trusted around technology, and Ginsburg, who would probably take the opportunity to try to destroy the internet for everyone, not just me.
Edit (9:38 AM): Woke up to find that this post was a little more popular than I thought it would be when I wrote it at 1 in the morning. Excuse the typos and also the fact that I was too tired to look for hilarious oral arguments other than CLS v. Alice, mockery for which I already had on hand.
Edit 2 (7:45 PM): I’ve written a follow-up on how much I think tech savvinness actually matters. (Answer: Not much).
The following is a snippet (okay rather long section from a rather long paper) on knitting and intellectual property, describing the public domain elements of knitting.
Unventing and Stitch Dictionaries: Traditional Knowledge, the Public Domain, and Prior Art
While musicians spoke up and were able to get this part of the bill repealed, it should be abundantly clear that the RIAA and Glazier in particular have always been anti-artist, and are focused on figuring out ways to help the recording industry screw over musicians even more. While he lost the termination rights battle, Sarah Jeong and Parker Higgins, over at EFF, have noticed that in the leaked version of the TPP’s IP chapter, there appears to be a hidden attack on termination rights.
I co-wrote this piece on termination rights in the TPP.
Regardless of the intent behind the provision, it is clear that the lack of transparency regarding the TPP is a problem. In 1999, much of the outrage was directed at the manner in which the Glazier amendment was added to an unrelated bill—“No hearings were held, no public debate took place, and no member of Congress sponsored the act[ion].”
When intellectual property policy is taken up in the trade context, that very lack of democracy and transparency becomes the standard.