There is also a tendency, not limited to the courts, toward making as little new law or policy as possible. This usually means new technologies are fed into policy or legal constructions made for older technology. The squabbles over broadband are a decent example of this, with fights over how to classify internet service under rules not substantively different from what was established for early radio.
FWIW, the SCOTUSBlog analysis suggests at least some of the opinion used this kind of reasoning, particularly with respect to cable systems that tried to rebroadcast over-the-air stations by capturing them over the air. http://www.scotusblog.com/2014/06/opinion-analysis-a-clever-new-technology-thwarted-for-now/ The Court of Appeals for the Federal Circuit is possibly the closest to a 'tech' court as it has national jurisdiction for federal patent cases. But those cases still have to come through local Federal Courts, and the judges that would be facile with technology cases are few and far between. That the Congressional Committees with jurisdiction over science and technology matters tend to not be the prime committee assignments doesn't help on the legislative front. David ________________________________ From: PGage <[email protected]> To: "[email protected]" <[email protected]> Sent: Wednesday, June 25, 2014 7:45 PM Subject: Re: [TV orNotTV] Supremes find against Aereo I think Doug is right about this; it is the job of the advocates involved to provide the court with the required background and context to understand the legal arguments. They do this in their briefs and supporting documents, and in their oral argument. You may be right that the court did not properly understand the issues, but even if so, I would place most of the blame for that on the lawyers arguing the case. Also, I would not put too much weight on what the justices say in their questions during oral argument. They have very bright, very young clerks who write their own briefs and drafts after oral argument and before voting and writing supporting and dissenting opinions, so that even if there were mistaken assumptions during questioning at oral argument, a lot of those are typically corrected and modified prior to voting and writing. Obviously I am not saying SCOTUS always gets it right (particularly the Roberts Court); but I don't think many of their problems stem from a failure to understand technical details of whatever field the case is framed in. For the record, while there has been some public discussion of Justice Elena Kagan's sexual orientation, I believe it is non-controversial that she identifies as a cis-female. On Wed, Jun 25, 2014 at 3:49 PM, Kevin M. <[email protected]> wrote: > > > > >On Wed, Jun 25, 2014 at 3:00 PM, Doug Fields <[email protected]> wrote: > >I would think that that’s the entire purpose of the oral arguments and briefs >before the Court. If I were arguing a complicated case, be it a new >technology or any other sort of esoteric concept, I think it would be in my >best interests to find somebody who can translate those concepts into terms >understandable to a group of middle-aged judges, *because* they shouldn’t be >expected to have the working knowledge to understand the subject beforehand. > > >Pouring through the transcript now. Might have to switch to the audio of the >oral arguments (I'm about 20 pages in and want to throw my laptop across the >room), but the transcripts seem to back my perspective. From the first few >minutes of the oral arguments, they've defined a cable company as a business >that receives signals or programs broadcast by television stations. Justice >Breyer compares "phonograph records" in a music store to a public performance. >Then there's this from Justice Kagan, "if Aereo has the hardware in its >warehouse as opposed to Aereo selling the hardware to the particular end user, >that is going to make all the difference in the world as to whether we have a >public performance or not a public performance," which illustrates that the >concept of a nebulous cloud with non-localized storage is so far above his >head it is laughable and sad at the same time. > > >Both the military and the IRS have their own courts because the specificity of >their laws require some knowledge to render opinions. I'm simply suggesting >these people, wise as they may be in the law, don't comprehend the nuance of >the technology they ruled against. > > > > >-- >Kevin M. (RPCV) >-- >-- >TV or Not TV .... 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