Last week the Supreme Court of the United States ruled on two significant technology cases. American Broadcasting vs Aereo and Riley v. California. I am not going to break down the implications of these cases here, or discuss them in depth, far better minds than I have already done this, but what is worth talking about is how given two different technology cases, the court approached the decision in two significantly different ways. In the Aereo case the court ruled by analogy, saying effectively Aereo looks like cable therefore it must be cable. In the Riley case however the court saw how the smart phone, is a different piece of technology, really nothing like opening a cigarette case that the state wanted to claim as precendence for searching a phone without a warrant.
In order to understand the differences between these two rulings you should read Margot Kaminski’s take. In her piece she argues that the court saw the cellphone as pardigm shifting, but Aereo as not. A lot has been made of the analogies and the ability of the court to understand tech based on what analogies they draw. Kaminski sums it up as:
In Riley, the Court created a clear rule to govern paradigm-shifting technology. In Aereo, the same Court punted to future decisions for a case-by-case determination of how new technology intersects with the law. As Justice Scalia pointed out in the dissent in Aereo, the majority opinion adopted “an improvised standard ("looks-like-cable-TV") that will sow confusion for years to come.”
So the question as Kaminski points out is why would the court employ two very different approaches. Kaminski has her own take about how the court chooses to apply old or new standards, one with considering. But I want to add another: familarity with the technology.
It seems to me that in the cell phone case the justices understood the technology in question. This is easy to ascertain by the arguments put forward in the decision, references to how the phones work, amount of data stored. But its also just common sense. I couldn’t find any pictures of the justices using smartphones, but given their ubiquity its hard to imagine that most of them don’t have one. And that even if they don’t (let says one or two justices still use a fliphone) smartphones are so ubiqutous in modern life, from TV and movies to just watching friends and relatives use them, that its hard to imagine the justices do not understand this technology.
Not so with Aereo. Aereo is far less ubiqutous. Indeed when I talk to people about the case the first thing I usually have to do is explain to them what Aereo is (again not so with smartphones). How many of you know someone with an Aereo subscription? compare that to a smartphone? And it is clear from the oral arguments as well, that the justices just don’t quite grasp the tech here. Breyer asks about the phonograph and a record store, Scalia thinks HBO is broadcast over the airwaves. Now this is not to pick on the justices, or call them idiots, there is no doubt that they are brilliant legal minds, but questions of technology are substantially different from questions of law. Or more narrowly questions of law are only one part of the larger picture of techno-cultural questions. (I wonder if each justice shouldn’t have a legal clerk whose expertise is solely in technology.)
The Riley case benefits from not coming to the court until a moment at which the nature of the smartphone is widely understood, leading to the favorable, “get a warrant decision.” But in the Aereo case the technology has the misfortune of coming before the court before it is widely embedded within the culture, and broadly understood. This favors a conservative approach. Maybe at a later date I’ll do a longer analysis of this, looking at when transformative tech comes to the court and how it has been treated historically. But also my sense is that this is a particular problem of this moment or rapid technological change.
But what about 3dprinting
So what does this mean for 3d printing. There are likely to be many cases involving 3d printing in the coming years. From IP cases to gun control. When I think about the future of 3d printing I always think of Michael Weinberg’s great piece “It Will Be Awesome if We Don’t Screw it Up”. Its an important read, the tone of which is summed up in the clever title, as Weinberg notes all the ways that the legal regime, and specifically IP cartels might try to restrict the technology.
So what can be done. Ideally I would gift a 3d printer to each one of the justices so that they start to play with and understand the promise of the technology before they rule on it. Heck gift one to all members of their families, so they just start seeing 3d printers as part of their daily landscape. But that probably won’t happen. It would be nice if court battles over 3d printing were delayed, especially any of the significant ones, this would lead more towards a Riley ruling and away from an Aereo one. But that’s difficult to coordinate and organize. But I do think there is one advantage that 3d printing has, and that is in the battle of the analogy or metaphor. The name helps 3d printing, is just like printing, except you print objects instead of just paper. Of course the just here looms large and carries transformative potential, but keeping the frame as “printing” is probably fairly useful.