IT Confidential: Another Low Moment At The High Court
Learn why Internet legal cases are like legal Vietnams.
Scene: Washington, D.C., Early evening. Outside a back door of the U.S. Supreme Court building. CHIEF JUSTICE JOHN ROBERTS stands in a small courtyard clicking away at a BlackBerry. ASSOCIATE JUSTICE SAMUEL ALITO steps out, unwraps a cigar, cuts off the end, and lights up, puffing hard.
ROBERTS: Stogie man, eh? I wouldn't have guessed.
ALITO: Cubans. They're my weakness.
ROBERTS: You know those are illegal, right? [They both laugh.]
ALITO: I've been meaning to get a BlackBerry for a while, now. Technophobia, I guess. Do you access your E-mail?
ROBERTS: Sports scores. NCAA. My brackets got blown out after the second round. Now it's simply throwing good money after bad.
ALITO: You guys dodged a bullet with that BlackBerry case.
ROBERTS: Maybe. But we're up to our eyeballs in the patent stuff now with this eBay case.
ALITO: Tell me about it. I've been reviewing case law all week.
ROBERTS: It's a no-win. We rule one way, it's us against the little guy, the All-American entrepreneur. The other way, we put the boots to an E-commerce success story. Either way, we lose in the court of public opinion.
ALITO: That's a joke, right?
ROBERTS: I'm not laughing.
ALITO: This could be a landmark case. We have a chance to address the legal status of patents in this country, their impact on technological innovation and business success. By supporting the right to injunctive relief, we can help define the nature of property and ownership rights in 21st century America.
ROBERTS: Your wife shop on eBay?
ALITO: I guess so.
ROBERTS: Go ahead, rule against eBay. Then start scraping off the frost at home.
ALITO: I stand by my convictions.
ROBERTS: Love the sentiment. But these Internet cases are like legal Vietnams. Gets hard to figure out the good guys from the bad guys.
ALITO: I didn't think this job was a popularity contest.
ROBERTS: Wait till we see some of those Google cases that are sure to come rolling down the pike--issues about copyright and trade-mark, ownership of search data, pornography, privacy. Everybody loves Google, but there's nothing that riles up the populace like privacy issues. And that riles up our friends over on Capitol Hill.
ALITO: And that means what, exactly?
ROBERTS: OK, so you don't hang with the executive crowd. But you start telling the boys over at Justice they can't get their hands on search data, and you'll see how many department Christmas parties you get invited to.
ALITO: I'm not a big party person.
ROBERTS: Fair enough. But those Cubans? I'd smoke 'em now, while you still can get 'em.
Note: I don't know whether Justice Alito smokes cigars or not, but otherwise I stand by the fictional accuracy of the above scenario. If you know where to get a good Cuban cigar--or have an industry tip--send it to to me at email@example.com or phone 516-562-5326.
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