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Technology At the Supreme Court

Today was a very big day for technology at the U.S. Supreme Court, with two hugely significant cases being argued. The first, Grockster v. MGM Studios, arises from the movie and recording industries’ efforts to impose contributory copyright infringement liability on post-Napster providers of P2P file sharing software. Supreme Court Takes Hard Look at P2P [CNET News.com]. The second, BrandX v. FCC, arises from the FCC’s efforts to clear the way for cable modem broadband service without requiring cable companies to share their facilities with ISPs. Supreme Court Asks Why Cable Broadband Lacks Regulation [ITWorld.com].

It’s always hard to predict where the Court will come down from its oral argument questions. But these remarks from Justices Breyer, Scalia and Souter in Grockster are quite revealing.

Justice Stephen Breyer pointed out Xerox copiers, videocassette recorders, iPod music players, and even the Gutenberg press had the potential of abuse by consumers. “In each case there could be vast numbers of infringement illegal uses,” he said, but he added that the benefits to society from those inventions were incalculable.

Justice Antonin Scalia wondered whether innovators would be punished immediately after creating a new product if the entertainment industry had a legal veto. “If I started a business now, how do I know how to proceed?” he asked. “If I’m a new inventor, I’m going to get sued right away.”

“There’s never the intent to break the law when the guy is in the garage inventing the iPod,” added Justice David Souter.

There’s a sense to which both the cable and entertainment industries are overreaching. I’ve got friends and colleagues on both sides of each of these issues, but biting off more than one can legitimately chew is a very bad strategy, since courts (especialy the Supreme Court) are pretty good at sorting out litgants who overstate or overplay their hands.

You’ve Come a Long Way, Baby

The story was about a significant constitutional case concerning private property rights and eminent domain before the U.S. Supreme Court. But buried in the text was the observation that with the absence of Chief Justice Rehnquist due to illness and another Justice (Stevens) missing due to a travel snafu, that “created an opportunity for Justice Sandra Day O’Connor, the most senior remaining justice, to become the first woman to preside over an oral argument at the court.”

The significance of this moment was its relative insignificance. Meaning that 20 some years after she became the first woman on the Supreme Court, O’Connor’s assumption of the presiding role at the Court was not treated as anything extraordinary. That illustrates the extraordinary social changes wrought by the women’s rights movement, which began with Betty Friedan and blossomed in the late 1970s. When I was in law school (1978-81), it was the first time that women made up nearly 50% of the student body. I remember celebrating Myra Bradwell Day, named after the first woman who was admitted to the bar as an American lawyer (after unsuccessfully appealing her initial denial to the U.S. Supreme Court) in 1870. Now it’s no big deal to have female lawyers, women judges and even women presiding at the Supreme Court. The same Supreme Court, mind you, that wrote about Bradwell, “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many occupations of civil life….The paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother. This is the law of the Creator.”

Holy revolution, Batman! John Riggins, of Washgington Redskins fame, once drunkenly quipped to O’Connor “Loosen up, Sandy baby.” I think it’s more appropriate, now, to say — like the old cigarette ad (or the newer Fatboy Slim CD) — “Sandy, you’ve come a long way, baby.”