Supreme Court Technology Law Blog
Edited by Rod Dixon, J.D., LL.M.
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This weblog was created to share ideas about the development of Computer Law and Cyberlaw issues that receive attention in federal court litigation, particularly those issues that reach the U.S. SUPREME COURT. This blog is edited by:
Rod Dixon, J.D., LL.M.
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The error in this case - - albeit, the case concerns Federal Rule of Civil Procedure - Rule 34(a) - - echoes the error that judges make in copyright and patent cases involving software. Namely, courts are confused as to how best to determine whether electronic data is stored in a tangible, fixed manner.
The appropriate answer depends on an understanding of computers and software, in part, and on legislative (or, policy-making) guidance. The limited tools of legal analysis are inadequate for the task. Hence, Judge Jacqueline Chooljian based her decision on the inadequacy of legal precedent. The judge looked for analogies in the law and found one in a case that, itself, was based on the inadequacy of legal precedent when it was decided (Mai Systems v. Peak (9th Cir. 1993). Consequently, we have courts bootstrapping bad law to make more bad law. What a mess these courts are making.
Given the increasing importance of electronic commerce, I am shocked and, at times, horrified by the continuing troublesome outcomes produced by some of our courts when the target of litigation is technology.
Even when the lawyers practicing before them well-understand the fine points of the technologies targeted by the litigation, too many courts (judges or juries) seem to lack the expertise to engage in reliable fact-finding.
Judge Jacqueline Chooljian was presiding over a case involving the MPAA and TorrentSpy. The movie industry challenged TorrentSpy by accusing it of copyright infringement. The court concluded that RAM data was discoverable by plaintiffs in a copyright infringement lawsuit. I suppose you cannot fairly express disapproval of plaintiffs' lawyers who zealously pursue dubious claims, if it is widely viewed that it is the court's duty to decide whether the claim is dubious. Yet, this system works well only when the court is up to the task before it.