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Technology and the Supreme Court

It is rare that the justices of the Supreme Court of the United States actually write or speak about technology. But as connectivity and user-generated content become more ubiquitous and pervasive, sometimes the Court — despite its inherent judicial conservatism — just can’t avoid touching on issues related to the use, importance and legal status of modern communications technologies.

In that respect, the just-completed 2009-10 and 2010-11 Supreme Court terms witnessed two rather impressive developments.  First, while more than a year ago most of the justices, and especially Antonin Scalia, said they had never even heard of Twitter, 2010 saw the first-ever mention of blogs and “social media” in a Supreme Court opinion, namely the controversial Citizens United decision on corporate campaign spending.

Rapid changes in technology — and the creative dynamic inherent in the concept of free expression — counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.

Citizens United v. FEC, 130 S. Ct. 876, slip op. at 49 (2010) (emphasis added; citations omitted).

Second, in this spring’s ruling overturning California’s regulation of violent video game sales to minor children — a/k/a teenage gamers — a sharply divided Court grappled not with the previously undecided question of whether video games merit First Amendment protection (on which there was unanimity), but instead the far narrower one of how to show a “compelling state interest” in restricting speech directed to children. That led to a remarkable passage, from Scalia himself, which as is typical was relegated to a footnote (where the “good stuff” is often found):

Justice Alito accuses us of pronouncing that playing violent video games “is not different in ‘kind’” from reading violent literature. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . ., they are as much entitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).

Brown v. Entertainment Merchants Assn., slip op. at 9 n.4 (2011) (emphasis added).

So the lesson is that although Justice Scalia may not know how to Tweet, but he can spell perfectly the name of a classic martial arts videogame, while still believing that The Divine Comedy is of greater value to society. What would the modern, technophile generation think about that? We’ll probably never know, because those facile with the means for mobile and rapid communications have short attention spans and thus probably lack have the patience (interest aside) to read Dante, even the Cliff Notes version, and tell us!


To DVR Or Not to DVR

It is hardly surprising that as digital video recorders (DVRs) become more ubiquitous, their basic function (i.e., automatic time shifting of television shows) is rapidly becoming commoditized. When TiVO was introduced in 1999 it revolutionized TV by giving users control of what they watched, when they want to watch. So as that feature spread to other devices—and especially once DirecTV stopped licensing TiVo technology for its set-top boxes—it is only natural that pundits would begin declaring the death of TiVO. Can TiVo Reinvent Itself in Time? [paidContent].

But TiVO has never been a simple DVR device, Coupled with a smart filters, custom recommendations and a sophisticated “season pass” feature, TiVO offers to consumers a software-based platform for customizing the television experience, while it simultaneously offers advertisers and broadcasters a tremendous wealth of valuable data on viewing habits. Moving into the next decade, it is this information aggregation function that promises to be the value proposition for the business going forward.

With its highly intuitive and user-friendly software, TIVO is better-positioned than anyone else to help users sift through and manage “infinite choice” in the same way Google has made the Web itself searchable. Recording linear TV for later playback will continue to have its place, but as more Internet-delivered video comes to television screens, TiVO will be the front-end portal through which subscribers access TV, video-on-demand, broadband content, interactive services and advertising.

To me, this says that TiVO’s biggest competitor is not stand-alone DVR machines, but rather the advent of on-demand video devices like Netflix-enabled Blu-ray players, Roku boxes and AppleTV. The biggest question is whether the need for local storage of videos, whether on a PC or DVR, will survive the transition to Web-enabled streaming video. As sites like Clicker.com make Internet video fully searchable, is there enough value-added with TiVO to convince consumers to continue to buy a hardware device in order to get access to software?

Prediction: Within five years, the market will see TiVO-branded software for multiple operating systems, leveraging the company’s technological superiority in a way that Hulu and the like have not as yet even tried to match.