Wednesday, September 9, 2015

Brief: Sympathy for the Judiciary

I'm not a hater by nature. Constructive criticism is one thing, but I'm not one to criticize without at least trying to understand where the person I'm aiming my comments at is coming from. When I wrote about the Game Genie and "Nuke It," I tried to highlight how much of a difference it makes when the judges reviewing a case actually get to know the subject matter. Understanding what made the Game Genie tick was the only way they could have made an informed decision on whether it was a derivative work of Nintendo games. Years later with "Nuke It," the difference between an informed decision and an uniformed one was even easier to see since the appeal took the time to explain the software-based reasons why "Nuke It" worked differently and did different things than the hardware-based Game Genie.

Who would have thought that understanding something made you better at making decisions about it, right? It's so obvious! And for hyperbole's sake, I'm going to say that judges should be required to show that they understand the things they're being asked to make decisions about before they can issue an opinion!

And then I'm going to immediately shoot down that idea because it is impossible and also doesn't give enough credit to what judges are being asked to do when they're given these technology cases. Let's use a comparison story to help you get a feel for their situation:

Imagine you work a boring data entry job for an insurance company or something. One day, a bunch of people from another department run up to you and yell "Quick! We need to you to be the sole decision maker about whether or not it's viable to mine for rare metal on the moon! You need to draft a highly detailed report on your decision in a couple months and only one person can help you. Here are some very long research papers that we wrote on this subject that you've never heard of before. Try not to think about the fact that they will obviously be biased toward our preferred outcome even though they purport to be purely educational documents. Oh and those papers are the only things you can use to educate yourself and if you so much as Google the subject on your own time you're going to get in trouble. Thanks bye!"

"Assuming you even know how to use Google and don't rely exclusively on dusty tomes.
Dusty tomes are against the rules too, by the way." (source)

That's what judges have to do. I'm not saying they need pity or anything (judges themselves probably wouldn't even say that), but I think it helps us understand why some of the decisions they make about electronic media are a little confusing. They were  required to educate themselves on a subject they had no background with and then make really important decisions based on that education. And this happens to them over and over again, and not every judge is going to have the energy or will to become familiar with a brand new topic every few months. Ideally, they would, but realistically you can't expect it. With technology moving forward as quickly as it has been for the last 20 or so years, there is absolutely no way for the judiciary to keep up a working knowledge of this entire field on top of all the other matters they have to stay in the loop about. Even the 9th Circuit, which is where most of the tech and copyright cases end up based on the location of Silicon Valley and Hollywood, can't be specialists since they still have so many other responsibilities. 

I almost hesitate to make this last point, but it's also relevant that the federal judiciary (where nearly all copyright cases are heard) is getting older by the day. Federal judges are appointed for lifetime terms, and it's very difficult to remove them from office for any reason that doesn't include shocking levels of corruption/full-blown cackling supervillainy. Meanwhile, polling shows that about 12% of federal judges are over the age of 80. This might not sound like many until you find out that there are less than 2,000 federal judges total in the United States (there are approximately 318 million Americans, just to give that a bit of perspective). That 12% number also only talks about the ones over 80. If you start looking at 65 and up, the number gets even bigger. I'm only bringing this up because a natural consequence of being a human being is that you eventually just get...well, I'll leave it to Danny Glover to spell it out. No matter what your profession is, no matter how well educated and/or intellectually curious you are, you will eventually get too old to continue giving your full, undivided attention to every new development. 

Let's make this more personal: Do you have a job? Is it in computer science? If it's not, how interested are you in getting sent to a two week boot camp where you essentially take a 300 level computer science course without any warm up? If you are a computer person, how would you like to go to sit through the same amount of time in a law school's administrative law class? That one, I can promise you, is exactly as bad as it sounds. 

Most people will react to that proposal with "I'm too busy for that," or "why would I want to do that, if has nothing to do with my usual field." That's where the judges are with all these technology cases. If you'd gotten to them 20 years ago, maybe they'd be willing to consistently update their knowledge on programming and how that affects software's potential for having its copyright violated. Now? Forget it.

That's why I'm so happy when I get to read an opinion where the judge took that time, educated themselves, and made a better decision because of that effort. It's a bonus when they use language that a normal human being can understand and apply to their future business practices and decision making. But it's also rare. In a perfect world we'd have more decisions that involved a deep dive on the technological intricacies of the subject matter, but we're all only human. No one can learn everything, and when your job is to be able to make decisions about everything, you can only do your best.

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