Information Technology and the Law

The first night.

Alex and I parked and asked the guard behind the Supreme Court where to go; he said (much to our dismay), “Go around front; there are already about 40 people there. You might be wasting your time.” So Alex and I ran around the block to the front of the Supreme Court. There really were at least 40 people there! Depending on who was counting, we counted between 40 and 50 people in front of us. Would we get to hear MGM v. Grokster? Moreover, we’d heard about 50 people could get in; that meant that some of us might get in and others would be left out.

The line turned out to be very friendly. Many of the people were software developers and students who’d come down from Boston or New York to see the case. At the front, there was a whole contingent of EFF-related people, and a number of people with personal lawsuit stories. Nelson Pavlosky hung out with us for a while (he sued Diebold with the EFF and won). There was also a film crew from Montreal making some sort of documentary. The best features were Fred Von Lohmann and Cindy Cohn showing up; these are the most public faces of the EFF; they represented Grokster in the district and appeals courts. They just stood around in street clothing and chatted with us. Pretty neat.

There were also a number of people in line who were evidently not interested in seeing the case. We dubbed them “professional line-sitters”; it appears that they may make $200 for sitting in line all night to hold spots for people arriving in the morning. This was more than a bit worrying; what if they allowed more than one person in? It also seemed just a tad unfair; we’d be in line for 12 hours, and people would just show up in the morning and go in?

Finally, we lay down a tarp and sleeping bags. Alex publically performed some Ali G episodes for us on his Powerbook. Jeff listened to some songs on his iPod. We speculated on the absurdity if we used the free Wi-fi in front of the Supreme Court to pirate Ali G episodes. Finally, we went to sleep, sometime around 1 am.

The morning

The next morning, we woke up around 6 am and broke camp. Some new people had shown up in line, and we watched some people in nice suits pull up in taxis and get into line as the professional line-sitters left. We worried that this wasn’t done fairly, but we couldn’t do much but wait and hope. Soon, much to our surprise, a dozen of the professional line-sitters just upped and left! We never would’ve thought! I presume that they just couldn’t find any buyers for their spots in line. They seemed pretty organized, too, with a “leader” arranging all the exchanges. We appeared to be in the 30s now. Well, we sat tight and waited.

A bit after 7 am, the Supreme Court Police brought us forward onto the plaza and handed out numbered tickets. Now, these didn’t guarantee us seats in court, but since we got tickets 32-38, we were pretty optimistic! We stowed our stuff in the car, had breakfast, and waited. We would not be disappointed.

First, Jack Valenti showed up. He’s the former head of the MPAA. He proceeded up the steps of the Supreme Court, only to have a Court police officer blow his whistle at him and reprimand him! Picture perfect. :) There’s also a video of someone asking Jack Valenti to autograph a Betamax tape!

Then, a band of songwriters from Nashville, Tennessee, showed up bearing signs reading “FEED A MUSICIAN DOWNLOAD LEGALLY” and “DON’T STEAL MY FUTURE”. Next, a group came in wearing “SAVE BETAMAX” shirts with signs reading “DON’T TOUCH MY TIVO” and “HANDS OFF MY IPOD”. The energy and excitement in the air was palpable. It was really amazing just how many people came and cared about this decision.

A bit after 9 am, they took the first 40 numbers in. We breathed a sigh of relief. Thank goodness we all got into the courthouse, at least.

In the court

Finally, only the first 35 people got seats. Three of us had numbers 36-38, and we just missed getting seats. Rather disappointing. As consolation prizes, they let us watch the first 15 minutes of Donald Verrilli’s argument for MGM, and then they rotated us in 3-minute shifts. The second time around, we almost got into a scuffle. Someone saw us getting back into line and accused us very violently of cutting in front of 200 people standing outside the courthouse. We tried to explain… then one of the guys that came in with us, #39 or #40, came up to him and said, “Do you even work here??!” in an angry tone of voice. We’d been waiting in line for 12 hours; we weren’t going to let some jerk eject us from the courthouse. And…it turns out he was a plainclothes member of the court police. That didn’t make the police officer very happy: “I’m a court police officer, I say where you go and where you don’t go.” Luckily, somebody came over and explained what was going on.

Commentary

MGM’s lawyer just got hammered with question after question from the justices. (People assure me this is typical.) They wanted to know what kind of test MGM was proposing. Justice O’Conner wanted to know what was wrong with the “active inducement” test. MGM seemed to be a proposing a majority-use test: a technology is ok if the majority of its uses are non-infringing. Justice Scalia wanted to know how much time a nascent technology could incubate before it was judged on infringing and noninfringing uses. Justice Breyer had the best question: “What about the iPod? And the Xerox machine? And the Gutenberg Bible? And the Sony Betamax? How does your test protect all of these?” As Fred noted later, we were there for perhaps the first time (and it won’t be the last time) that a Supreme Court Justice asked, “But what about the iPod?”

It’s hard to get much out of 3-minute snippets, so I didn’t get too much of Richard Taranto’s argument for Grokster, but at least we got excellent seats for the next case, FCC v. Brand X, and we got to see how Supreme Court oral arguments went.

It was neat to see the individual personalities of the justices. When you’re reading court opinions, you see these names — Breyer, O’Conner, Rehnquist, Ginsberg — but it’s hard to see their personalities. In court, though, since they can interrupt counsel at any time with questions, you really get to see what they’re thinking about. Justice Breyer has a fantastic grasp of technology; he asked a question in the FCC case on why calling Europe wasn’t an information service: “My voice gets turned into packets of bits which are disassembled, sent across the ocean, and reassembled at the other end. Even if it still my father-in-law at the other end, why is this any different than an ISP?” Justice Scalia was very active in interrogating the counsel. Justice Rehnquist’s health seems to be failing; he had to leave several times during FCC v. Brand X, aided by two clerks.

I will let the others tell you about Grokster’s argument and the press conferences.

This was definitely an experience. I still can’t guess who will win, but at least I am reassured that the justices are intelligent people who really understand the technology and the issues involved. They were all asking the right questions. I doubt that they fully understand the implications of Sony Betamax as thoroughly as engineers like us who have worked on the technology, but it is reassuring that they at least understand the importance of the issues at stake — the iPod, the printing press, the VCR, and the Xerox machine.

After the battle, we walked with Fred von Lohman; it was awesome to have one of the lead counsels for Grokster with us to just answer questions about the case we’d just heard. We went to a reception hosted by Public Knowledge, had some lunch, talked to von Lohman, Matt Neco (General Counsel for Streamcast) and some other folks some more. The public interest groups involved with the case are amazing. They are so dedicated and passionate about the cause. I am definitely going to donate to the EFF.

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