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Editorial: The US judicial system versus modern technology

updated 06:40 pm EDT, Thu April 24, 2014

Is the US judiciary serving the people to the best of its ability?

It can be argued that we're always on the cutting edge of technology -- every day there are new advances, and new techniques developed to do legacy tasks some other way. Likewise, hardly a day goes by without a new lawsuit from an entrenched company, claiming that this new way somehow infringes upon, or unfairly penalizes, an old-guard way of doing business. This seems to be the way of things, but as technology marches on, our judicial system doesn't seem to be able to keep in step.

Aereo is a company in limited markets that captures free over-the-air broadcasts by television stations with arrays of tens of thousands of dime-sized antennae. Each user has a single antenna assigned to them, and the captured signal is then streamed over the Internet to the user (for a monthly fee), or alternatively, can be captured for future viewing like a DVR. Each locale is limited to what it can receive over-the-air -- for instance, the New York City market will only receive New York City stations, and not Boston's programming. The key takeaways here are a single antenna for each user, and the limited locality of service.

The oddly united broadcasters wish to sue Aereo into oblivion, claiming that the product violates copyrights, as well as flies in the face of what it sees as a required rebroadcast license fee stipulated in 1992 for its content. Previous court rulings, such as the 1976 overhaul of copyright law, are being used as a cudgel in this case by both sides with Aereo claiming that what they are doing with a single antenna for a single user is legal, just as a user might do for themselves on their own roof. The broadcasters claim that the arrays of antennae are a technological trick to illicitly sidestep copyright.

In yesterday's Aereo hearing, Supreme Court Justice Sonia Sotomayor wondered what Roku was paying for a licensing fee to cable companies and big media for the content it streams. The answer is nothing; users pay cable companies or rental fees for most of that content. Additionally, Justice Antonin Scalia wasn't aware that HBO wasn't able to be received over-the-air. Old guard, cable. New technology requiring some understanding, Aereo.

US District Court Judge Denise Cote, overseeing the Apple ebook price-fixing trial and related lawsuits, seems to misunderstand that Amazon holds the monopoly on the market, not Apple. A simple perusal of metrics performed by a wide range of companies clearly show the dominant position that Amazon held and still retains in that market despite Apple "colluding" with publishers. In this case, the old guard is Amazon, and the newcomer's model and method that needs some understanding is Apple and the publishers' "agency model," despite both having been in business far longer than Amazon.

The Aereo case heard before the Supreme Court yesterday required the arguing attorneys to invoke metaphors, most of them clumsy at best, for what Aereo actually does -- because the judges, most of them technically senior citizens, do not comprehend the changing market and evolving technology. Lawyers and justices spent time during the hearing invoking allegories involving valet parking services viewed from 30,000 feet and coat check rooms in an effort to grapple with the understanding they must have in order to rule fairly on the matter, learned though they are in other areas.

The justices ought to be able to comprehend the issues without having to resort to metaphors of a bygone era, and certainly ought to be able to "Google it" for an explanation of what Aereo or the "agency model" are all about -- but seem unwilling or unable to do so, and I remain confused as to why. If I failed to comprehend issues or jargon in my position as a lowly tech writer, I wouldn't retain my job for long.

While I understand that confirming a Supreme Court justice takes a bit longer than vetting a tech writer, and that even the esteemed members of the court can't be expected to be experts in everything, the requirements to understand all aspects of what is being discussed -- including what is at stake for all parties involved including on-lookers and the public at large -- should remain the same.

Pre-research and comprehension by adjutants is especially needed when precedents may be set, like the Cablevision decision from 2008 that allowed digital video recording, as well as the famed "Betamax case" and other precedents that clarified what constitutes "public performances" over three decades ago -- precedents which are now being used in the Aereo case. In turn, the decision in that case will likely guide the future of on-demand streaming video on the Internet, with a wide-reaching decision casting a shadow over the entire industry and even the very future of such services on the Internet. The judges seem to have a handle on the legal side of matters, but lack a fundamental comprehension about the technology at stake, and lawyers' attempts to shoehorn it into completely irrelevant examples in the interest of simplicity may actually be making the matter less clear -- and damaging the judges' ability to render the best verdict for the people that they claim to serve.

With few exceptions, judges responsible for overseeing court cases involving the advancement of technology seem unwilling to take on the mission to understand the technology at the core of the cases they oversee, and this should be grounds for recusal. At the very least, judges who are not personally tech-savvy should do the research to fully understand what it is they're judging. Courts that lack an understanding of the underlying technologies, changing market and the repercussions of their decisions have already crippled our patent system, have lead to highly-questionable product bans, and demonstrably stifled innovation.

I am not a lawyer or judge, but I am smart enough to have consulted one in the broadcast industry before writing this article. In the Supreme Court case, previous precedent seems to point heavily in Aereo's favor, despite the technological workarounds to make the system legal. A single antenna per user belies the cable company arguments that Aereo's method is a rebroadcast or a public performance.

Furthermore, other precedents from the 1970s clearly point to repeating antennae in a local area served by a broadcast network not being considered public performances of the works, and as such, do not mandate retransmission fees -- and all this doesn't even begin to cover the requirement that the broadcasters offer their programming for free over-the-air as a condition of being allowed to operate in the first place, since the airwaves used for the transmissions belong to the public, not the broadcasters.

In just the Aereo case, at stake is the ability to legally play back videos stored in a "cloud" service, like Dropbox. Also potentially affected are stores like the iTunes store, or Google Play, both of which offer videos for sale that can be streamed. A too-wide ruling could cripple cloud-based video services, making nascent offerings like a Pandora for video, or even Netflix, open to attack -- shutting down competing services and handing the old-guard networks a monopoly.

Should the supreme court rule against Aereo, it will die, as there is "no plan B" according to the company's CEO. Licensing fees for other services like Amazon Prime Video and Netflix could skyrocket under the thumb of emboldened broadcasters, most of whom who still lack a coherent online-only offering not requiring a cable subscription.

I'd like to believe that simple judicial misunderstanding of the issues is the core problem, because that can be fixed with a little education, possibly some time with a more tech savvy aide, and some search engine use. Sadly, I'm beginning to believe that some judges just don't bother to catch up on what's changed tech-wise since they went to law school. I hope that what's happening now isn't happening because of favoritism towards the old guard's ways and business models in the interest of not rocking the boat, or worse.

by MacNN Staff



  1. elroth

    Junior Member

    Joined: 07-05-06

    I don't agree with the underlying assumptions in this editorial. The problem with Judge Cote's decision is not that she doesn't understand the new technology - it's that she either doesn't understand the law and the Supreme court precedents, or she got carried away with her bias against Apple.

    The Supreme court Justices are more than competent enough to figure out the issues involved in the Aereo case, even if some of them have never even used the internet.

  1. Charles Martin

    MacNN Editor

    Joined: 08-04-01

    I'm inclined to agree with your assessment of Judge Cote's attitude in the e-book case (and just for the record I did not write this editorial), but she (and the DOJ) also clearly don't understand what Amazon was doing to shut out competition (even though there is plenty of pre-Internet precedent there), and what would have happened if it had succeeded. All the judge and the DOJ seem to imagine is that the lowest possible price is, regardless of long-term consequences, the always the best thing for consumers. I call that "Walmart thinking."

  1. Mike Wuerthele

    Managing Editor

    Joined: 07-19-12

    I did write the editorial. Cote understands what she wants to understand, and her understanding is that Apple = bad, Amazon = good, and she's fine with that. We shouldn't be.

    The supreme court Justices do the same, they study what they want to study. Logically, they went to law school. Logically, they study case precedent. So, logically, they have the ability to study what it is that they're ruling on.

    They're just choosing not to.

  1. slapppy

    Fresh-Faced Recruit

    Joined: 03-23-08

    @EstaNightshift You nailed it right there. Plenty of references on the net showing her bias even before the trial began.

  1. shawnde

    Fresh-Faced Recruit

    Joined: 04-01-08


    Well, so far, I've followed about two dozen cases of recent, and I fully followed Microsoft's monopoly trial of the late 90's .....

    I would lean with the writers of this article, that people in the "law circles" whether young or old, typically don't understand technology. I'm not blaming them .... it's a lot of stuff to comprehend at once, but nevertheless the problem is there, and it needs to be addressed.

    Just as there are IP Lawyers in the technology field, there should be Judges who are specialized in these fields. Judge Cote completely lacked any understanding of the issues at hand; Judge Lucy Koh misunderstood many issues in Apple's first trial against Samsung, but she faired better than the rest. The Aereo case is also one of those .... the law is on the side of Aereo, but whether they can let go of their bias (implicit or explicit), remains to be seen.

    I would say the judges on all these cases that I've read over the past 5 years, have been very incompetent in terms of technology and understanding of it .... even the basic fundamentals.

    And your last sentence is a complete contradiction .... How can a judge rule on a "cloud" service if he's never used the internet? That's just not possible. That's akin to saying that a judge who's never driven a car in their life, can judge a DUI case !!!! Does that make sense to you?

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