Jun 28, 2014
...The problem isn’t that the justices are old fogeys. The problem is that the justices were groomed in a field that emphasizes reasoning by analogy. And analogies were critical in these cases: The Aereo decision, for example, hinged on whether the company was more like an equipment provider or a cable company; the Riley and Wurie decisions addressed whether cell phones are sufficiently analogous to wallets. But emerging technology is, by definition, about breaking away from history. Perhaps reason by analogy hamstrings innovation, or perhaps it promotes impartial decision-making. In any event, it helps explain why the justices sometimes say such silly things.
Years of tortured analogies at oral arguments culminated most recently with this week’s cases, but a look back at decisions from years past reveals an abaundance of strained analogizing. In past arguments, computers were analogized to typewriters, phone books and calculators. Video games were compared to films, comic books and Grimm’s fairy tales. Text messages were analogized to letters to the editor. A risk-hedging method was compared to horse-training and the alphabet. EBay was likened to a Ferris wheel, and also to the process of introducing a baker to a grocer. The list goes on.
“I think there are very, very few things that you cannot find an analogue to in pre-digital age searches,” Justice Breyer said during the Riley oral argument. “And the problem in almost all instances is quantity and how far afield you’re likely to be going.” For the high court, a prior century or two apparently isn’t too far afield.
The justices are tickled by these analogies. Justice Kennedy, for example, appears blissfully unaware of the new definition of “troll,” and covered for his ignorance with a joke during oral argument for eBay v. MercExchange: “Is the troll the scary thing under the bridge, or is it a fishing technique?” This raised eyebrows in the patent industry, where “patent troll” is a stock phrase. Justice Bryer, during the the Riley oral argument, interrupted a discussion about the GPS capabilities of smartphones with another analogy joke: “I don’t want to admit it, but my wife might put a little note [with directions] in my pocket.” (Is the smartphone supposed to be like his wife? Unclear.)
Justice Alito, arguably the most analogy-obsessed of the bunch, best summed up the Court’s historical handicap when he teased Scalia in 2011, saying: “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”
But this fixation on technological analogies is more than just an idle curiosity. It has real-world implications that are not to be underestimated. Recent years have borne out that if a technology under scrutiny cannot be analogized to a historically protected invention, it may be doomed. In 2006, for example, Chief Justice Roberts doubted that eBay was an actual invention. He asked the lawyer, Seth Waxman, what the invention of eBay was, and when Waxman explained it as an electronic market, Chief Justice Roberts responded flippantly, saying, “I mean, it’s not like he invented the internal combustion engine or anything. It’s very vague.”...