tv Key Capitol Hill Hearings CSPAN June 25, 2014 8:00pm-10:01pm EDT
the court also ruled 6-3 that web company aereo, violated broadcast stations copyright licenses by opinion lick i performing their programing without paying any fees. if you haven't heard of aereo, the company has been delivering more than two dozen channels over the internet intended for markets using tiny antennas. the "usa today" has a chart on the winners and losers in the case on the winning side,
networks and tv stations can expect to be paid when their content is rebroadcast. movie studios like the decision because it protects copyright on tv series and movies. on the losing side, aereo and device-makers. we there the consumer electronics association decision by the supreme court today, disruptive to innovation. here is the argument from april. >> argument in case 13-461, american broadcasting companies versus aereo. mr. clement. >> mr. chief justice and may it please the court. aereo's business model is to allow thousanding of paying strangers to watch live tv online. the aereo's legal argument it can make that happen without publicly performing. congress has statute that squarely forecloses that rather counter intier tiff submission. the internet and mini antennas
are new, the basic service aereo is providing is not materially different from the service provided by cable company before this court in 1969. >> where are they not -- >> the -- >> everybody has been arguing this case as if for sure they're not. but i look at the definition of a cable company and it seems to fit a facility located in any state. they have, whatever they have a warehouse or a building in brooklyn. the receipt, that receives signal transmissions or programs broadcast by television broadcast stations. you're taking the signals off of -- >> they're taking signals, right. >> i'm sorry, they are. makes secondary transmissions by wires, cables or other communication channels. seems to me that a little antenna with a dime fits that definition, to subscribing members of the public who pay
for such service. i mean, i read it and i say, why aren't they a cable company? >> well, justice sotomayor, a couple of things. first of all, if you're already at that point you probably understood just like a cable company they're publicly performing and maybe they qualify as a cable company and maybe they could qualify for the compulsory license that's available to cable companies under section 111 of the statute. >> this gets it mixed up. >> we have to go to all of those other questions, if we fine that they're a cable company. we say they're a cable company, they get the compulsory license. >> there is lots of conditions on the compulsory license. i think the first place, the reason that we haven't been debating whether about whether they're a cable company, they want to be a cable company. they have a footnote in the brief that make it clear. they are not a cable company in their view. they don't want to be a cable company. that is because, cable company might potentially get you compulsory license but bring as lot of obligations being a cable
company. >> that's why they don't want it. >> exactly. >> that isn't the question. >> well here's the other thing -- >> question is, are they. >> i don't think they are. that is really ultimately a question under the federal communications act but here's why if i could i think, mr. frederick will certainly speak to this if you want him too, i think the reason they don't want to be a cable company, i think their basic business model would not allow them to qualify for compulsory license any ways. >> i would still like to know the answer to the question in your opinion. of course if you want a reason i will give you my reason. if we take the public performance, maybe we run into what professor saw as a problem, why is it, what used to be a called phone know graph record store that sells phonograph records to 10,000 customers, giving a public performance? it seems to fall within that definition. if it is, there's no, no first sale doctrine and it's a big
problem. so we could avoid that problem. that's why i'm very interested in the answer, not just what they want. >> well, i don't think they are ultimately a cable company and we could debate that question but it is not the question before you so maybe i can give you some comfort about why you don't need to decide that question. >> because my reason for wanting to decide it is what i said. and what you have read in their briefs, they in their supporting amici has thrown up a series of serious problems not involving them, like the cloud, which the government tells us to ignore. and many others which make me nervous about taking your preferred route. so that's why i was interested in this question. >> but justice breyer, i think it is very important to understand, even if they're a cable company it doesn't make all the problems go away. they wouldn't be a cable company by very virtue they want to point to, user specific copies i
don't think they qualify for the compulsory license. i think best way to avoid your concerns take them on directly. the reason the record company is not involved in public performance because it is not involved in any performance at all. that is different of course from an online music store which not only provide a download of something but actually performs it and streams it and allows it live. that is a basic distinction that is not only recognized by the second circuit in the as scrap case but -- as cap base case but real world the way the services are structured. if you provide download of music get services license or reproduction license. and streaming of music where you have contemporaneous live performance then you also get a public performance license. and -- >> is your definition, just breyer has already asked you, says he is troubled about the phonograph store and the dropbox and the icloud. i'm also worryied about how to
define or public performance or the performance of a work publicly which i guess is the better way to do it according to you. how do i define that so that someone who sells coax seal cable -- coaxial cable to a resident of a building is not swept up as a participant in this or, someone who, sort of passive storage advisors? this is really hard for me. what do i do to avoid, what do we do, not me, what does the court do to avoid a definition or an acceptance of a definition that might make those people liable? >> let me try to take those, those are two different examples and i think answer to both of them is somewhat different. the provider of coaxial cable, if it is just a simple sale of the cable is not performing at all. and so i think if you're somebody and all you do is take
as piece of hardware and sell it once and for all to a user, then the user may be performing with the equipment but you're out of the picture and that's different from an ongoing service like a cable company or like aereo, who still owns all these facilities and they're providing through wire transmissions these performances on ongoing basis. >> before you get to justice sotomayor's second half of the question, but something more along the lines of providing hardware. suppose a company just behave the antenna and a hard drive, that is what they sold to the user. and the user was able to use the antenna and the hard drive in her own house or apartment and in order to get all these broadcast programs. what would the, would that be a performance? >> i think the end user would be doing the performance but it would be a purely private performance and i don't think the person that sold them the hardware or really anybody else if i understand your hypowould be involved in a performance. the answer to these hypos, this is not something i'm making up
on the fly. it is right there in the text of the statute? that really does depend where the hardware is. in other words, if aereo has the hardware in its warehouse as opposed to aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance. >> well, and again i think that goes to what i was about to say which is, that is not because we like one better than the other. it is because of the text of the statute congress wrote. one of the ways you can public perform. they start with classic performance, right? singer at concert hall. they sold tickets. they say, wait, also a public performance if you take the singer's performance and you transmit it and they're singing over the airwaves and all sorts of other ways, if you transmit it to the public. the definition of transmission then is communicate it from one place to another. so there is a geographical aspect if you will that built right into the statute if you sell somebody hardware and all they're doing is transmitting it to themselves, at their home,
there is not going to be a transmission that is chargeable to the person who told you the haired wear. if you provide an ongoing service -- >> you think in my hypo, it's a performance but a private performance? you move the hardware and it becomes a public performance is that it? >> it become as public performance on behalf of the sender but still would be a private performance on behalf of the receiver. that is one thing that is really important to get in mind, is that in this statute as to the public performance right, there is nothing particular i anomalous about a single transmission that from the sender's perspective it's a public performance but from the recipient's perspective only allows for a private performance. if you think about the classic cable context which is what congress is trying to address in 1976 with the transmit clause you have the cable company and they're taking a performance off of the airwaves and they're transmitting it to all the enusers. now the cable companies clearly performing to the public but that same transmission is allowing each end user to turn
on their television set and -- private performance. >> we're playing a license for no reason? >> i'm sorry. >> hulu is paying a license for no reason? they sold me a piece of equipment? >> i don't know all the details of that particular piece of equipment. i'm not sure whether they're paying a license or not. if there was really transfer and there is nobody else providing a transmission, i don't think that just operating the hardware in the privacy of your own home is going to result in anything but a private performance. >> so to the drop in the cloud. >> i think that is different situation. i think ultimately text that allow you to differentiate a cloud locker storage like something like what aereo does is language to the public. i do think in all sorts of places including the real world there is a fundamental service between a service that provides new content to all sorts of end-users, essentially anything stranger and a service that provides a locker, a storage
service. i think if you want a real world analogy off the internet i think it is basic decision, the difference between a car dearly and valet parking service f you look at it from 30,000 feet. you might think both of these things provide cars to the public. if you looked at it more closely you understand, if i show up at a car dealership without a car i'm going to get a car. if i show up at valet parking service and i don't own a car it will not end well for me. >> what is the difference, i didn't mean to interrupt your -- >> so i think, there is a very real way in which you would say, you know, at end of the kay the car dealer is providing cars to the public. valet parking service is not. it is providing a service. >> i don't want to stretch it, why not like a public garage and your own garage? you park your car in your own garage or park it in your own garage. you can go to radioshack and buy antenna and dvr or rent those facilities from somewhere else from aereo. they have a antenna to use when
you need it. they record the stuff as well as let you pick it up when you need it? >> mr. chief justice, that is not implausible way to look at it. this is the way they looked at it in the for the nightly decision. congress in 1976 decided it would look at it differently. it decided if you're providing a service, if providing a service one could reconceptualize that on one could put on their own house, the person provided service ongoing basis and exploit copyrighted works of others is engaged in public performs performance. that is clearly what they were trying to do in the 1976 act by adding the transmit clause. >> second circuit analgized to its cablevision decision. so maybe you could explain to me what is the difference in your view between what aereo does and a remote storage dvr system. does the difference have to do with the way in which they cable company, that has remote storage dvr system versus aereo acquires
the program in the first place? does it have to do with the number of people who view this program that's been recorded? what is the difference? >> i think that the potential difference and both the cloud locker storage and this example i don't think this court has to decide it today. i think it can be confident they are different. here -- >> i don't find that very satisfying. i need to know how far the rationale that you want us to accept we'll go and i need to understand, i think, what effect it will have on these other technologies. >> i had the same question. just assume that cablevision is our precedent. i know it isn't but let's assume that it is. how would you distinguish the cablevision from your case? has it happened here, assume it is binding precedent. that is hypothetical. >> okay, but, justice kennedy, i would like to answer both your questions that result in cablevision is right but i don't necessarily buy the reason. i think the reason for cablevision is profoundly wrong. let me circle back. the reason there is fundamental
difference between the dvr at issue in cablevision and what aereo provides is as justice alito alluded to, the fact there is license in the cablevision context to get the initial performance to the public. so then i think appropriately the focus in the cablevision context becomes, just the playback feature and just the time shifting that enabled by that and in that context if you focus only on that, the rsd vr looks a lot like a locker service where you have to come in with content before you get content out an only get back
. as the government says, don't worry because that isn't a public performance. and then i indeed the definition and i don't see how to get out of it. >> here is the way to get out of it, justice breyer. ultimately the court will have to interpret to the public. >> to the public, you see separate at the same time? or different times? separate or together?
a thousand people store in the cloud the same thing as can easily happen and call it back at varying times of the day. and if all they can do, just like the valet car parking service is get back what they put up there i think you could easily say that is not through the public. that is not me coming up with clever distinction. that is the distinctions that's been draw in real world. not all cloud compute something created equal. some cloud computing services use cloud computing technology to people that don't have it and they get licenses. there are other cloud computing that just has locker services and they don't think they need a license. i'm not saying you have to bless what the market has done but it is profound indication -- >> what if mr., clement, it is not as simple as a company allows you yourself to put something up there? how about there are lot of companies where many, many thousands and millions of people put up there and share them.
the company in some ways aggregates and sorts all that content. does that count? >> that, justice kagan, is precisely why i'm not asking you not to decide the clout computing question once and for all today. not all cloud computing is created equal. details might matter f i can take the valet parking service one more time. if valet service rents them out with a zipcar service on the side. while we have the car somebody needs a car, we'll rent it out. that is like the different valet parking service. i like to reserve rest of my time for rebuttal. >> thank you, counsel. >> mr. stewart. >> mr. steve justice and may it please the court. i like to reinforce two points mr. clement made. the first is what aereo was doing is really functional equivalent of what congress in the 1976 act wanted to define as public performance.
as chief justice said, one potential way of looking at this, early companies like it are not providing services. they are simply providing equipment that does a more sophisticated way what the viewer himself can do. it is plausible way looking at word. that is what the court in for the nightly and teleprompter said but congress acted promptly on that. cable services that used one big antenna to pull broadcast signals out of the sky and rerout it to the subscribers those people were engaged in public performances and they ought to be paying royalties. the second thing i would like to reinforce in mr. clement's presentation is that there is no reason that a decision in this case should imperil cloud locker services generally. as mr. clement was pointing out that the term cloud computing -- >> how about simple tv or nimble tv, which is not quite hybrid? >> i guess i'm not familiar enough with the precise details of the operation but just, let
me say in general terms there are obviously services that provide television programing over the internet. some of them are licensed because they recognize that they are publicly performing. if a particular company, for instance, recorded television programs and offered to stream them to anyone who paid the fee, or offered to stream them for free and made its money off advertising, that would be a public performance, because, those companies would be providing content to people who didn't have it. i think basic distinction. one at least defines the extremes that the distinction between the company, whether it be internet-based or cable transmitter that provides content in the first instance and company that provides consumers with access to content that they already have. if you have a cloud locker service, somebody has bought a digital copy of a song or a movie from some other source, stores it in a locker and asks that it be streamed back. the cloud locker and storage
service is not providing content. it is providing a mechanism for watching it. >> my same question to you that i asked to mr. clement, how about if there's a company that allows sharing and that aggregates all the content that is different individual users put up and that in some sense sort of sorts and classifies the content in different way, how about that? >> i think you would have to know both the details of the service and you would have to be making a harder call there about how to draw the line because i don't pretend there is a bright line between providing a service and providing access to equipment. if you look for instance, at the extremes of a person putting a rooftop antenna at his own home, everybody agrees that there, the rooftop antenna manufacturer is not performing at all and the individual is engaged in a solely private performance. at the other extreme is the cable company, one big antenna, makes transmissions to a lot of people. congress clearly intended to define that as a private
performance. somewhere in you could come up with lots of hypotheticals that look more or less like one of the other extremes or somewhere in the middle. it is ought then i cannily hard call where to drought line. so i don't have a good answer for you. >> how do we get out of the example? how do we get out of, what words do i write to get out of this throwing into this clause a music store that distributes via federal express, a device or u.s. postal office or even someone over-the-counter, distribute 10,000 people a copy of a record which they then will take and play it? they have the same degree transmitted something that will electronically, make a performance of the music. are they, when they sell the record, of violating the display clause? because -- >> because, the definition of to transmit goes on to transmit a
performance or display is to communicate it by any device or process. >> yes. >> whereby images or sounds are received beyond the place from which they are requested. >> they are. the sounds are received beyond the place. it requires the person to take the record, put it on a machine, and then play it. >> well there is a separate exclusive right in the copyright act. >> of course there is. that separate, exclusive right has such things as first sale doctrine attached. but if they also flow here, if they all, if this covers them, which is why he wrote the paragraph quoted if this is covers it there is no for sale doctrine that has a lot of consequences i think so. >> if you don't know -- >> you haven't got something right there, and not going to think about it in two minutes, nor will i. >> i have thought about it and i think the answer is that the word transmit being used in a particular sense. you are correct that there are some contexts in which we would
say that a person who sends cds or vinyl albums over the mails is transmitting those. that is the not sense in which the term transmit is used here. it is talking about transmitting in a way that causes the sights and sound to be received. transmission through radio waves, through cable, et cetera. and if there were any doubt about the word transmit, remember, that it is part of the definition of the word perform and ambiguity is in the definitions should be construed in light of a defined term. nobody would say in ordinary parlance that a person who transferred a copy of a record was performing it. >> justice -- >> before you go, and mr. clement made the point that we would be, if we took the position that petitioner urges, incompatability with our international obligations that
is, aereo's view of the public performance rights is incompatible with our obligations of the bern convention and under, what is it white? at pages 44 to 45 of his brief. he says that area area -- aereo view of the public performance right runs straight up against our international obligations and cites a case from the european court of justice and i think another case. >> we haven't made that argument. we believe that committing u.s. copyright law properly construed is fully sufficient to comply with our international obligations. that doesn't mean we think that whenever a court misconstrues a statute we will automatically be thrown into breach. it is certainly possible if this case were to decided in aereo's favor that some of our international trading partners
might object but i'm not going to take the position that we concede those objections had merit. so we're not making that argument. the other thing i would make to say, to reinforce the point that mr. clement was making about the phrase, to the public, using his example of the valet parking, using a comparable example after coat check room, there are situations all the time which people place property momentarily at the disposal of another and then retrieve later and it is distributed to them at that later date, not in their capacities as members of the public but as the true owners of the property. and i think some kind of distinction along those lines is essential in much more mundane applications of the copyright act. for example, if i invite 10 friends over to watch the super bow, that's a private performance. it is not a public performance. that is not because my friends are not members of the public. they are and in some other
capacity it is would be important to regard them as such. if the theater down the street had a screening of casablanca and happened those 10 people were the only 10 people who attended, it would be a public performance because they would be in their capacities as members of the public. so i think in a wide range of situations dealing with public performance, distribution to the public, it is essential to ask not only are these individuals members of the public in some tense but are they acting in their capacities as such. if you have the pure cloud locker service. a service that doesn't provide content and simply stores content and plays it back at the user's request, that service would be providing content to its true owner. >> how do you want us to deal with cablevision, the cablevision case in the second circuit? again assume it is binding precedent, just assume that. >> my answer would be the same as mr. clement's. the reasoning of cablevision, if you really adhere to the idea that the only, the only
performance that counts is the individual transmission and asks, does that go to more than one person, then it is hard to see how you could rule in favor of our position here. but as far as the bottom line outcome of cablevision is concerned, you could accept the government's position and still say, cablevision was decided the correct way because precisely because cablevision had a license to perform in real time, to broadcast a program to its subscribers of the only thing that was at issue was the supplemental rsd vr service. the court in cablevision held prepare at rattily we think -- appropriately we think. the holding of program to the subscribers entitled to view them in real time and play back could be characterized of a private performance much their own content. thank you. >> thank you, mr. stewart.
mr. frederick. >> thank you, mr. chief justice and may it please the court. i want to address the cable questions, before i do that, i can say the three points i wanted to make the text is very clear for aereo. the interpretations of the text that they offer, absolutely threaten cloud computing and third, this case is really a reproduction right case, masquerading as a public performance case. now, we are not a cable service. the reason we're not a cable service is because cable takes all signals and pushes them down. there's a head-in, defined by statute. there is a very particularized, regulatory structure that deals with taking a lot of content and pushing it down to consumers. aereo is an equipment provider. nothing happens on aereo's equipment until a user initiates the system. the user initiates the system by logging on and pressing, this is the program that i want to watch. that then tunes the antenna,
activates the recording that will be made, and then the user is then able to play back the recording. >> i always thought and i try to be careful about it but not often enough, probably breach it like every other member of the public, that if i take a photograph of a record, and just locate i had a million times the way you're doing it and i then go out and sell each of those copies to the public, then i am violating the act. so why is it that you're not? it is not logical to me. >> sure. >> that you can make these millions of copies and get, sell essentially sell them to the public because you're telling the public when they want to buy it, they can call it up and hear it. so why aren't you? >> your hypothetical, justice sotomayor implicates the reproduction right.
that is exclusive right of the copyright holder to restrict the number of copies that is made. that is not a public performance right question. they abandoned their challenge in the preliminary injunction proceeding to the reproduction right issue because it runs right into the sony decision. in sony this court held that consumers have a fair use right to take local, over the air broadcasts and make a copy of it. all aereo is doing is providing antennas and dvrs that enable consumers to do exactly what this court in sony recognized they can do when they're in home and using equipment and antennas, and dvrs to the internet. >> with judge wright when he said, there is no technically sound reason to use these multiple antennas. that the only reason for that was to avoid the reach of the
copyright act. aren't there technical reasons, instead of having one antenna to all all these dime-sized antennas? >> this is very complex question, justice ginsburg and let me answer at multiple levels. there are technical reasons why the individual antennas provide the same utility at lower costs and functionality than one big antenna. but there are very practical concerns too. as a startup business, aereo is attempting to inties consumers to replicate on the cloud what they can do at home at lower costs and more efficiency. as a practical matter, and judge chen had no basis which to make this statement at all in his dissent because these are facts not in the record and efficiency is not a consideration under the copyright right act, you can't do multiple channels over the internet anyway. you can only do a single video stream at a time. so whether you have one big antenna or whether you have lots of little antennas you still have to compress the signal and
only one can go over the internet at a time. however, justice ginsberg, as a startup business there is very real consideration why multiple antennas make sense. if you're in new york city you want to put a antenna on top after building you got to get a building permit. if you want to construct it, you have to get a construction permit if you want to put it up there with a crain you have to get a subway permit to before you do all the things to put a big antenna on a building in new york city to get broadcast signals. >> is there any reason you need 10,000 of them? if your model is correct, can't you just put your antenna up and do it? there is no technological reason for you to have 10,000 dime-sized antennas, other than to get around copyright laws. >> the point of the copyright laws, your honor, shouldn't turn on number of antennas. it turns whether the person who is receiving the signal that comes through the internet is privately performing by
initiating the actions of that antenna, getting a data stream, having that signal compressed so it can be streamed over the internet, through a user-specific, user-initiated copy. >> that may well be but it doesn't contradict the chief justice's question. i mean, you're just saying that by doing it this way you don't violate the copyright laws but his question is, is there any reason you did it other than not to violate the copyright laws? >> we understood, yes, there is a reason, justice scalia. we wanted to tell consumers you can replicate the experience at very small cost. you know you have a right to put an antenna on your roof and put a dvr in your living room. we can provide exactly same antenna and dvr for fraction of the cost by putting it over the cloud. >> but it is not, you give them space that's available when they call in. they don't have, this is my little dime thing and this is my copy going to be here. they're there, when they want
something you provide service of giving them. they don't have a dedicated antenna in brooklyn. >> well, some of the consumers do, the record is clear that some are statically assigned to particular users. but mr. chief justice, that doesn't answer the question, the statutory interpretation question which as in cablevision, as justice kennedy noted, there is a user specific, user initiated copy that when used by the user is a private performance. that operation of a system works exactly the same way. and the fact that cablevision is able to compress its signals to make them internet accessible to a single antenna and aereo chooses to do it through multiple an 10 i can'ts to avoid all the hassles that go with having a big antenna should not matter for the copyright laws. we're still talking about renting equipment that consumers have a right to get over the air signals that are free to the public. using public spectrum that the
government allocated to -- >> suppose aereo offered a service so that the viewer at home could press three different buttons but it takes only 45 seconds and he could get the broadcast without advertising and aereo would have some way to screen out the advertising, so you could watch the entire baseball game or football game without the ads? >> that would probably violate the reproduction right, justice kennedy. >> would aereo be a performer then? >> aereo would not be a performer. the question would be, and this does go into the technical details and here the position between the parties is quite stark, they say that the facts don't matter. we have a well-developed factual record. there, justice kennedy the fact it would matter in your hypothetical, would be whether or not the mission of the -- initiation of advertising free had been done by consumer or the cloud. >> the consumer makes the choice, you can have it with ads
or without the ads, push button one and push button two. >> i understand. >> i don't understand why you're the performer in one case and not the other case? >> because the action who is a performer turns under the statute on who is making, who is acting to make the sequence of sounds and and images perceivable. where you're talking about taking out advertising, what you're doing is you're alter iting the copy and you are abridging, infringing the reproduction right. that is not something you can do in the aereo technology. i have no brief to defend that. that would be a very difficult reproduction right question but it doesn't matter in terms of who is exercising a private performance because that is being done in the home with a user initiated, user-specific copy. >> mr. frederick, your client is just using this for local signals right now. >> yes. >> but if we approve that, is
there any reason it couldn't be used for distance signals as well? >> possibly. >> possibly what? there is possibly a reason or it could possibly be used? >> it can be used for distance signals but -- >> what would the difference be? it could be hbo. you could carry that without performing? >> because hbo is not done over the airwaves. it is done through a private service. ly, justice scalia, let me answer your distant signal hypothetical this way. that would implicate the reproduction right. it does not implicate the public and private performance distinction. even if you take distant signals and make them available through the home it is still through a user-initiated. and user-specific copy of the programing. the question becomes is there a fair use right to be able to do that? what sony said because sony was dealing with local over the air broadcasts and making a copy of
local over the air broadcast, it said that consumers have a fair use right to make a copy of that. sony did not address the distant signal. the question would become balancing the various fair use factors, whether it was appropriate for a consumer to be able to get access to that programing without being able to otherwise implicate the free public spectrum. now, the way congress has addressed that, congress has addressed that by saying when there are distant signals that then get pushed through a cable system, there is a copyright royalty that gets paid. but i want to make absolutely clear. satellite, cable, do not pay copyright royalties for local over the air broadcasts. why? because the local over the air broadcast channels wanted it that way. they didn't want to be in a situation of having to figure out how to divvy up all the copyright royalties to the various holders the so when they talk about how congress
supposedly overruled fortnightly, what they ignore in section 11-d and section 122-c of the copyright act, congress said the retransmission of local over the air broadcasts through satellite and cable shall be exempt from the copyright regime so when they talk about the transmission issue they're really trying to conflate totally different regulatory system -- >> every other transmitter does pay a royalty. maybe it is under a compulsory license. and you are the only player so far that doesn't pay any royalties at any stage. >> well, justice ginsburg, the person who sells an antenna to me at the local radioshack doesn't pay copyright royalties either. the company that provide rental service for me to put antenna in my home and install it, they
don't pay copyright royalties either. the question is really boils down to in this case, is how significant should it be, how long the cord is between the antenna and the dvr. >> the answer is very significant. and the reason very significant is because what the local antenna person doesn't do but you apparently could do, even if you don't, is with the same kind of device, pick up every television signal in the world and send it almost and send it into a person's computer. and that sound so much like what a catv system does or what a satellite system does. it looks as if somehow you are escaping a constraint that's imposed upon them. that is what disturbing everyone and, then what disturbs me on the other side is i don't understand what the decision for you or against you, when i write it, is going to do all kinds of other technologies. and i have read the briefs fairly carefully and i'm still uncertain that i understand it
well enough. that isn't your problem but it might turn out to be. >> well let, let me address -- [laughter] let me try to make it their problem. [laughter]. i think i have addressed the distant signal and i think you can reserve that case to say that might raise a different issue but on the facts here would not entitle the company to an injunction enjoining aereo from providing this service. now with respect to the second aspect of this, the reason why their interpretation of the transmit causes so much problem, so many problems for the cloud computing industry is that it is twofold. number one, they are conflating performance with work in the transmit clause. what they are saying is that so long as the work is always perceived in some fashion to a performance that is privately done through the playback of a recording, that that, because the initial work was
disseminated to the public, that implicates the public performance right. what that does is it means that every time somebody stores something in the cloud, whether it's a song, a video image, or the like, if it happens to be something that somebody else has stored in the cloud, the act of one person initiating it and perceiving it is going to implicate the public performance right. that is why the cloud computing industry is freaked out about this case because they have invested tens of billions of dollars on the notion that in user-specific, user-initiated copy when perceived by that person, is a private performance and not a public performance. the second thing that they do that is wrong with the statute is they aggregate performances. sin he had of where the statute says, transmit a performance, they say, transmit performances. because they acknowledge that the way that the technology works for aereo is that it is an
individual user-specific, user-initiated copy but they say no matter. if you add enough of them together you can aggregate that to become a public performance. >> just to make sure, there is no reason it is a user-specific copy, is it? 10,000 copies it, would be much easier for you to have to make one copy and everybody could get a copy. >> that is where the issue about replicating what happens in the home matters, mr. chief justice. because if i'm in my home and i start the program two minutes in using aereo's technology i miss the first two minutes, i never get to watch it. it happens to be when i push the button to initiate the copy just like if i'm home watching on a dvr the same principle. so that copy will always be different because i have control over it versus -- >> surely you can make a program where you have just one copy and starting it at different times? you don't need every viewer to have his own copy.
>> but that, that is the key distinction between video-on-demand ad the service that aereo provides, the kind of equipment and technology that aereo provides. we don't have a debrief to defend the master copy. that the master copy situation is indisputably public because there is no right to exclude anyone else. with aereo's technology, if i'm making a copy using aereo's system, no one else can look at it. even if you happen to have watched the same program, you can't watch my copy. i can't download it. >> you're saying your copy is different from my copy. >> correct. >> that is the reason we call them copies because they're the same. [laughter] >> all i'm trying to get at, i'm not saying it is outcome determinative or necessarily bad but i'm saying your technological model is basebased upon circumventing legal prohibitions that you want to comply with. that is fine. lawyers do that. i'm wonder considering, whether you can give me any
technological reason apart from compliance with the particular legal issue for your illogical -- >> it is much simpler if you're a startup to ad components, to add modules, when you're starting up, ramping up. what we're talking about in any cloud computing industry you're starting with one group of servers and then you add them, almost like lego pieces, as you are adding the number of people that you're using. that is a technological reason why the cloud works the way it does, mr. chief justice. so aereo's antennas and its dvrs, we can with about the length of the size of this counsel table here service tens of thousands of people in the new york area. we can provide the antennas and we can provide the dvrs. it is a very compact, small space. then if we expand and we're able to continue to be in business and we get more subscribers in brooklyn we might add another row that would be size of the counsel tables behind me. that aspect of the technology
goes to the modules that are used for cloud computing where you basically can additional servers, additional hard disk space and then when new consumers activate, let me just be clear about this. when they sign up, their system is completely empty. there is no content be provided. there is equipment that is being provided. so when they activate the system and they say, i want to watch the news at 6:00, they 10 start the process that then has their individually-assigned storage with the 6:00 news. but until that happens, there's no content being provided. so the notion that they have in the reply brief that over and over we're somehow a content provider would mean that everybody who provides an antenna or dvr is somehow a content provider f that's true, then the implications for the equipment industry are obviously quite massive and you can understand why that would frighten the cloud computing
industry because that turns them into public performers when ever they are handling content. now. >> if the subscriber a menu and says, you can get any of these things. it is not as though the subscriber initiates it. it, you have these choices. they're providing you these choices and those choices are content. >> it is no different, justice ginsburg, if i'm at home have antenna or rabbit ears on my tv -- >> no different from a user's perspective. exactly the same as if i'm, watching cable, right? you just have a different content selection but it looks the same to you. somebody else is providing with you with a menu and then you pick off of that menu. >> right, but the menu, justice kagan, and justice ginsburg is simply what is technologically available. there are broadcast signals available in a local area and they are limited because that's
what the broadcasters make available. systemly providing a user guide you can tune to this channel or tune to that channel if you want to pick up one program or another can't be the difference between a content provider and merely facilitating the use of your equipment. >> would you explain, and in a sentence, or two, which will sound as if i'm favoring with you but i want them to have a chance to reply, the thing that frightened me somewhat in your brief, was i think of the cloud storing everybody's music. that is -- music. then they send it down, perhaps to a million people at a time, who want to all hear the same song. now what you said was, if i understood it, but explain it if it is, there is a provision of the copyright law that says when that happens, it is subject to a compulsory license. if it is subject to a compulsory license, then of course people can get it and it's paid for by somebody, about if we decide with them, there would be a
different provision that would come into play, namely the performance. and it wouldn't be subject to the compulsory license. there is no point telling me i'm right if i'm wrong. what i want to know, have i got your argument correctly? and if not, what is it? >> i think your argument, justice breyer -- >> not my argument or perhaps a parody or incorrect version of yours. >> let me try to correct it. there is no come powell pull sorry license with respect to music and videos. there are different compulsory licenses with respect to satellite and cable and capture all signals that push them down. >> that would be the same. that won't be a problem? >> no. where it will be a problem with the cloud, if you say, if i'm watching a particular program and you're watching a particular program and justice sotomayor is watching the same program, we're engaging in the company that has allowed us to make a copy of that, is engaging in public performance. where you have to deal with infringement is the concept of
volition and the idea of who is doing the act. if i'm simply making equipment available -- >> it should work in a parallel way. that is, when i look at the program, i am making a copy of the program and therefore i am violating the nonexclusive right to copy. if that is fair use, and therefore i can do it, it should also be fair use, exactly same thing happens but comes from a cloud. >> let me further answer your question about music because i omit ad key distinction which is that for local radio broadcasts there is a music distribution license. it is under section 115 of the -- >> 115-c-3. >> that is exactly the same way satellite and cable work as well. so that if you're broadcasting in the local area, you, it is for free. it is like a copyright-free zone. the reason for that in the music world is because they want local radio broadcasters to play songs
because that drives sales of the records. that's a totally different business model of course than in the television world. but the reason why this matters for your perspective is that what the court, the second circuit in cablevision said, user-specific, user-initiated copies are private performances, they are not public performances and the only way -- >> but now you're saying that at&t's system, netflix, hulu, all of those systems get their content and they don't push it down to you. they do exactly what you do. they let you choose what you want to see. >> the difference -- >> the difference is that they do not exclude anyone and the difference the public, private, distinction from property law is whether or not there's a right to exclude. if i have private property i exclude others. if i have public property, i'm not excluding others. netflix, hulu, there are other services, they're not excluding anyone. as a users of those services i have no right to exclude anyone
else. so they are making their product, their content available to all without exclusion, other than the subscription that you pay. what we're doing is providing the equipment that enables people to access it. now the only distinction that is offered -- >> -- subscribers, legions of subscribers. so i don't understand that. you say they have to, selective and some people will want to use your service are going to be turned down or not? you take anybody who can pay, right. >> sure. if we went around to 1000 or 10,000 homes in brooklyn and put up antennas an installed their dvrs for them and sent them a monthly bill every month to pay us because we have performed that service and provided that equipment, it would be exact same position, justice ginsburg. and that can't be a copyright violation. now the only distinction the government offered why cablevision decision in the second circuit, and goes to your question, justice kennedy
somehow should be different here, is supposed lawfulfuls rers in of the -- lawfulness the first instance that content is received that distinction can't work and would imperil the cloud. here's why. when a person is accessing local over the air broadcast television is doing so because that is free public spectrum. sony says we have a fair use right in order to make a copy of that free use. the government in the fortnightly case argued that there is an implied in law license when a person accesses local over the air telecasts in that way. there can't be distinction between our situation and cablevision there is somehow some difference because if i'm watching local over the air broadcast tv in my home, i don't have to pay a royalty for it. and that is exactly the analogy that would be appropriate there. now, how would that affect the cloud? well if you turn every type of performance from an individual
makes from some content that gets downloaded and or transferred from the cloud, the cloud provider can not tell what is legal or not legal. some stuff would be up there pie rated. some stuff could be up there perfectly licensed. what the position of other side in this case, those people are liable for direct infringement of the public performance right. and that's why the cloud industry is very concerned that if you have too expansive a interpretation what is the public performance right you are consigning them to potentially ruinous liability. >> mr. frederick, why isn't sufficient to create a line such as the one mr. clement said, which said, do you on the one hand supply or provide the content? that puts you in one box. on the other hand, if you're not supplying or providing the content, if the user is supplying and providing the content and you're just providing the space, a kind of platform form them to do that and for them to potentially share the content, that puts you in another box? >> justice kagan, i note my
friend did not reference the words of the transmit clause at all when he offered that distinction. and that is actually quite important because in order to get there, you have to make up words, to put them in the transmit clause. but even if you were to think that would be good for a policy reason you would still have to explain why the ones of thousands of people that are subscribers to aereo's service don't have same fair use right to get over the air broadcast content. all those people who are not aereo subscribers but happen to have a home antenna and dvr. those people have every bit of a right to get that access and the fact that they are doing it doesn't make their antenna or their antenna provide ear content provider. as i said -- >> a lot of people pay for the aereo service, do the same thing all by themselves? >> because if you don't have to buy a tv, a dvr, and an antenna and a shrink box which might --
sling box, which might cost thousands of dollars, might pay hundreds of dollars to rent it or look at programing selectively $8 a month. that is rental service, justice ginsburg. that can't change the copyright analysis. just because you rent equipped does not transform the person providing that equipment into a public performer, particularly when you are the one who initiates every set of signals that activate the programing and the he have content. if there are no further questions, we'll submit. >> thank you, counsel. mr. clement, you have three minutes remaining. >> thank you, mr. chief justice. just a few points in rebuttal. first i have to correct the fundamental difference. mr. frederick says as he did in his red brief, if you're only cable company, and you only retransmit locally you doesn't have to pay a royalty. that is just wrong as we point out in the replay brief. there is minimum royalty that every cable company pays whether or not they transmit distant signals. so that is just wrong.
second this is not a case as mr. frederick would like to say where the user pushes a button and after that point aereo is just hapless bystander. if you want insight into what actually happens behind the scene is the phrase, the district court used, look at pages 64-a, to 67-a of the petition appendix. because judge nathan explains all the things that aereo does after the consumer presses the button and before it comes back to them on their home screen. they are not just a passive bystander. this whole notion of what's volitional. maybe in the reproduction concept, context, just pushing a button, there is only one person who reproduces but the concept of what is the requisite volitional conduct is answered by the transmit clause. congress specifically looked at this and said there will be a lots of situations where the where the sender, usually the cable company or aereo, sends a transmission to the user around the sender of that transmission, if it allows a contemporaneous performance, unlike the record
company, they are a transmitter. they are publicly performing. >> mr. clement, till me the consequences of our decision today? do you put them out of business or do they have to go and negotiate a license with every copyright holder? what, you're in fact tell me they're not a cable company. they're not a satellite company. so they can't go into those systems payment. what happens there? >> the consequences really gets back to the chief justice's question. if they actually provide something that is a net benefit technologically, there is no reason people won't license them content. but earned, if all they have is a gimmick, then they probably will go out of business and nobody should crier a tear over that. >> once you take them out of the compulsory licensing system they will have to find copyright owners who own the james agooge pictures, who owns something that was written by a french silent film in 1915. i have mean the problem is that, they might want to have
perfectly good things that people want to watch and they can't find out how to get permission. that is a problem that worries me and it worries me again once you kick them out of the of the other systems. >> not a problem should worry you. first of all if they really need a compulsory license maybe congress can revisit has in technologically specific ways for cable and satellite. there are other ways to get content. . .
>> guest: i am smiling here. i am gratified that the supreme court stood by a principle which is as old as the constitution which is that copyright material has a value and those who own a copyright should be free to negotiate for its value. and i think they came down on the right side of the law and history. >> host: and justice breyer's decision he compared aereo quite a bit to a cable company. is that a fair comparison in your view? >> guest: of course it is because you had broadcasting and cable came along and then satellite but what if satellite had said you know we are different than cable. we have a slightly different technologies so we are going to take that and not consider ourselves to be what is in law called and mp dp so we don't have big negotiate that satellite didn't do that and so why should aereo be able to come up with a different technology
and say we don't have to negotiate or copyrighted material. we have said from the beginning this is about ring opposed to technology. there is still a technology at aereo and maybe there's a business model for it but that doesn't mean you can evade the law to run a business. >> host: so what is the business model that you could foresee? >> guest: they could do what cable and satellite does. they could deal with us on copyrighted material and so is the technology that may have a place in the market that they now have to obey the rules of the road that everyone else who is out there on the highway has to obey. >> host: so you could see the n.a.b. or broadcasters dealing with aereo as they do with cable companies retransmission costs etc.? >> guest:look, these are business decisions. my job is the n.a.b. president is to advocate for laws and regulations that allow my
members to stay in business. aereo was an existential threat to that is not a direct threat to that. and i would imagine that this does not go away and that there will be discussions with aereo and broadcasters but that's beyond my responsibility and i will take that to the judgment of my members. >> host: joining our conversation is monte tale of committee patients daily. >> guest: mr. smith aereo is pretty popular. as its success suggests broadcasters should be doing something differently to capture that market or take those customers? >> guest: this is the thing about broadcasting. they were just doing what we were doing with antennas that they were charging people for stuff going free over the airwaves and that is what triggered the copyright law. i mean my own sense is we are interested in every viewer and
having access to our content as long as it's done lawfully. >> guest: has been suggested to me by a few people that aereo could respond by going to congress and lobbying. i know the house judiciary chair said the decision highlights how they should look at the copyright laws again. how would n.a.b. react to that or do you have a plan for a congressional battle over these rules? >> guest: absolutely. i'm not suggesting the copyright laws shouldn't be visited by copyright law from my experience as a u.s. senator is extremely difficult to do because it's essentially about picking winners and losers. it's hard for congress to make those judgments but that said, i believe we will be very cooperative and highly engaged and then the development and update of copyright law and already are. >> host: senator smith i want to read from justice scalia's
dissent scalia breyer thomas dissent. on remand is justice scalia writes one of the first questions the lower courts will face is whether aereo's record function which allows subscribers to save a program while it is airing an watch it later infringes the network's public performance right. >> guest: yeah i mean that's certainly something for the courts to decide and it will be remanded but what was upheld today was the fundamental constitutional principle that you can't take someone else's copyright of intellectual property and resell it without dealing with the owner of that copyright. so however future cases develop that principle was decisively established and settled by the supreme court today.
>> the supreme court ruled in favor of digital privacy wednesday in a unanimous decision stating that police need a warrant before searching a cell phone or personal electronic device of a person may rest. "the new york times" reports chief justice john roberts writing for for the court says the vast amount of data
contained on modern cell phones must be protected from routine inspection. the ruling revolves around the case rightly v. california. david riley was pulled over in san diego in 2009 for having an expired auto registration. the police found two loaded guns in his car and on inspecting his smart found entries they associated with a street gang. >> case 13132 riley v. california. mr. fischer. >> mr. chief justice and may it please the court. this case it involves applying the core production of the fifth amendment to a new factual circumstance. it has eyes been the case that an occasion of an arrested not
give the police officers authority to search through the private papers and bureaus and cabinets of somebody's house. that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets. >> just to test the principle for why the police can search and see some objects, consider a gun. the arrestee has a gun on his person and the police take the gun. it is part of the reason for that seizure to obtain evidence of the crime or is it just for the safety of the officer in the safety of the community? >> what this court said in robinson on page 135 is the reason supporting the authority are the two chanel factors which are gathering evidence to prevent its destruction and officer safety.
>> gathering evidence in order to make -- for instance with the gun could they take fingerprints? the gun is in the police station where the arrestee is being booked. can they take fingerprints and b can they copy the serial number and can they see how many shows were left in the chamber? all for the purpose of building a case of obtaining evidence? 's. >> that is done every day. once it's in the police department's lawful position i think edwards says they can do all that. >> so with the principle then is that some objects that are obtained from the arrestee can be examined in order to build the state's case, is that at least the beginning premise that we can accept except in your case although obviously there are problems of the extent and intrusiveness of the search in
your case but not in the gun hypothetical. >> justice kennedy the court has never described that as one of the things. if you want to think about this case the way you thought about the automobile searching can't it would be the premise that you are right if it were the beginning premise it would only be that come at the. infoglut -- footnote nine edwards the fourth amendment reasonableness. >> i think gant is probably the best statement in support of the principle that i have suggested and you might say that is limited to automobile accident. >> are important things understand if you want to start thinking about gant because both in terms of its history and its modern application is dramatically different from what we have here. >> mr. fisher before we do that, have you been accurate in what he said about robinson and the courts cases?
in weeks the courts said the right always recognize under english and american law to search the person of the accused when legally arrested to discover and sees the fruits are evidences of crime. is that starkly inaccurate? do you want us to repudiate that? >> no your honor. what we said and you quoted it, and she mentalities of the crime have always been something that can be seized from a person. weeks as this court said in robinson itself was dicta and there was that historical authority to take the fruits of the evidence, fruits and instrumentalities. >> instrumentality or evidence? you changed it to instrumentality. >> weeks uses the word evidence that justice scalia because it was not an issue in that case the bishop treatise that you cited in your concurrence talks
about tools and ensure mentalities. i don't think we have to debate that here because even if we are in a world where the police can seize some evidence and keep it and use it for the prosecution simply for that reason even though they don't fear destruction there are profound problems with searching a smartphone without a warrant because even under the robinson roll this court has recognized for example when it comes to blood draws, something like a strip-search there are limits even to the robinson rule. >> smartphones do present difficult problems would let me ask you this. suppose your client for an old-school guy and he didn't have a cell phone. he had a billfold and he had photos that were important to him in the billfold. he had that at the time of the arrest. do you dispute the proposition that the police could examine the photos in his billfold and use those as evidence against
him? >> no. that's the role of robinson. any physical item on an arrestee can be seized and inspected and then used as evidence. >> what is the difference between looking at hardcopy photos in a billfold and looking at photos that are saved in the memory of the cell phone? >> the difference is digital information versus physical items. physical items and pose a safety threat and have distraction possibilities that are not evident with digital -- what's more want to get into the digital world you have the framers concern of general warrants and writs of assistance. >> how does that a flight -- apply to these hardcopy photos in a billfold? they don't present a threat to anybody and i don't see that there is much of the difference between the government argues there's a greater risk of destruction of digital evidence and a cell phone than there is in a photo so i don't quite
understand how that applies to that situation. >> let me take this one thing at a time. the theory of robinson that the government itself found is any physical item if it contains a razor blade or a pen needs to be inspected to be sure so you have a categorical rule because of the ad hoc page of the west. the police don't have to distinguish physical items one from the other. >> let's stick with justice alito's hypothetical. they find a business card or something which shows car services and they turn the card over and read it and they are not looking for a pin or explosive. they are trying to read what's on the card. >> i think nothing else once it's in their hands justice kennedy. >> what if they turn the card over? >> that's fine under the categorical rule. the rule obviates these exact difficult case-by-case
determinations. you could make an argument that if i knew to if it were a diary or billfold case he might be up to make an argument that the court wisely decided in the robinson that we need a categorical rule that's easily admissible in the field. when you have digital evidence that categorical rule hasn't the exact -- opposite direction. it implicates vast amounts of information not just the photos themselves but the gps location of data linked in with it, all kinds of other information that is intrinsically intertwined in smartphones. >> including information that is specifically designed to be made public. what about something like facebook or twitter? any privacy interest in a facebook account is at least diminished because the point is you want these things to the public. >> mr. chief justice. >> my question is are
information in the clouds so to speak is not accessible to officers. we submit that further would compound the difficulty of applying a rule in a circumstance. >> if this case we have to decide whether all the information that may be available in the smartphone can be examined by the police when the owner of the phone is arrested or can we just focus on particular evidence that was submitted in the clients tryout? >> the way you phrased the question i think that's the first cut if there's looking at the particular pieces of evidence here which are photos and videos, but we don't think you can write an opinion that would distinguish those from anything else or almost anything else on a smartphone. the state's argument here is that those are not quote fundamentally different from other things that people would carry. >> could the police obtain a warrant in this case? >> in all likelihood the s. and
would have plenty time to do so. >> than the evidence that is feasible under the warrant is reasonable and justice alito points out the fact that some of this evidence is reasonable. there is a limitation with reference to the way the police behaved as justice alito points out. it's limited just to this evidence. >> let me say a couple things about the warrant requirement and justice alito's question. this court has said time and again the mere fact that the police could have gotten a warrant and didn't. let me say a couple of things about the warrant requirement. >> it just goes to the fact that this is searchable under the fourth amendment standards. >> with the warren justice kennedy and me talk about why warrant is important. it poses a neutral observer and between the citizen and the police officer. perhaps more importantly it does
two very big things. one is taken particularly requirements of the magistrate can say this is what you can look at in remember in this case the prosecution ultimately introduce photos and videos but that is not what the detective testified to in the trial. he said in. shay: m11 we looked at a whole lot of stuff on the phone and that was what in his words cautious side. >> you recognize and you just told justice kennedy that a warrant could be obtained. a warrant for why? a warrant for why? what would the police have to show? they apply for a warranted but with a warrant have to say?
>> we give an example of a warrant in our footnote reply brief in there are many on the web from states that already require warrants. what they do as they say the police officer testifies perhaps somewhat like he testified at the suppression hearing. i suspect that this fellow was in a gang and i believe gang members keep certain kinds of things on their phone. this was a crime we are investigating and therefore these particular files within the phones are likely to contain evidence and the war and say with particularity here are the things you can look at and here's what you can't. more importantly justice ginsburg. >> you have told us it's hard to figure out what you can avoid it can't but it's easy for magistrate? is a possible for an arresting officer? >> much easier for magistrate and an officer under the stresses in the field. i agree it's not going to be
perfect so let's look at what happens under our rule. >> along the same lines as justice cooley at the point you make in your brief argument is that the smartphone has everything. it has a person's whole life. if you are arresting somebody on the grounds of suspicion that he's a gang member and you have evidence to support that was part of the smartphone is not likely to have pertinent evidence? what application is not? here you have pictures and videos. i guess it's similar to what other issues have been raised. i don't know what the magistrate is supposed to put in the warrant. >> i would say this banking app. >> the banking app is going to say deposited $10,000 into his account. and it's going to coincide with the particular drug deal. >> mr. chief justice those arguments can be made on app by app basis but this is the benefit of our rule is supposed to the governments. with the government does is let
the officer looked and then have a backend hearing where you suppress all the stuff he was not supposed to look at once you apply particularly requirements. once the officer has the war and we nccic since they don't have to have these hearings and district courts because once an officer does the proper search according to the warrant you don't have to have a suppression hearing. there's one other important thing that goes into a warrant which might've been lost -- glossed over too quickly in a breeze. it's how it can be kept and the retention of information raises fourth amendment concerns. my understanding in california is at least for some clients is not just that they are downloading the information in looking at it for the crime of arrests but keeping this information in databases ever-growing databases of every cell phone. >> what if you have a device that doesn't have brought information that a smartphone has? only a limited like if it bit that tells you how many steps
you take in the defendant says i have been in my house all afternoon they want to see if he has walked for miles. it's not his whole life was a great part of your objection. is that something they can look at? >> probably not and this is the way the categorical rule if robinson categorical rule of robinson where it sleeps than the hypotheticals in one direction. obviously i don't have to win that argument today but i think that is how you would approach that question. if it bit and this is true even more so if smartphones tells you the kind of information the court was concerned about. it tells you modern smartphones work the inside of peoples house the appliances and they have cameras. they also monitor the inside of peoples bodies. >> what if the phone in this case for an old-fashioned flip phone so it had the capacity to take pictures of a much more limited memory. would it be a different case?
>> i think that will be part of your conversation in the next case perhaps. the easiest way to decide the case right now in 2014 is to simply say digital evidence kept on modern cell phones are different than physical items. i don't think it's really worth going back in time to the most rudimentary device. >> what if a person had on disbursement compact disc? >> i think that might be the same kind of case you have now. remember the phone in this case had a removable memory card as many still do which by the way we were going to talk about destruction of evidence. that is why answered to destruction of evidence. it was on a removable memory cards that couldn't be erased remotely are password-protected. we have given lots of arguments in a brief that explained why the government's arguments as to
why simply don't stand up. >> mr. fisher in earlier question you did not finish the answer. you are describing the difference between downloading by police of databases that they keep forever. what happens with materials that are returned pursuant to a search warrant? i they precluded from doing that? >> i wasn't sure i understood. >> i take it the ordinary rule is if the police lawfully see evidence in the physical world if it's a physical item that might at some point need to be returned to the owner but if it's something that can be made a photocopy of art remains in police files lawfully obtained information they can use into the future. you have real problems however when you apply that typical rule to digital information. now again what i understand the government itself and the federal government footnote 3 of
its reply brief in worry acknowledges it's keeping an ever-growing federal database at least some of the information seized from smartphones. >> i'm sorry i don't know if you answer my question. can they do the same thing once a search warrant is issued? >> not necessarily. the beauty of a search search warrant if they can delineate retention rules. it can say here is how long you are allowed to keep information. here is who is allowed to look at it and who is not. >> frankly have to tell you i don't ever remember prosecutor coming to me with that kind of delineation. >> justice sotomayor that is what is happening in the digital world because we have new and different concerns than had arisen. >> mr. fisher would that be at such and see that would allow police to look at cell phones and if so what would those exigencies be? >> absolutely. there would be times at the scene where exigencies would allow it. first of all the two officer
safety arguments the other side thinks of our hypothetical bomb or confederate ambushes this court recognized in chadwick exigent circumstances the concern about the experts have described and they make his brief we don't think would have ever arisen in a situation of legitimate concern but in a very odd world. >> i don't understand your first edges and circumstances. when there is a bomb but you don't know whether there is a bomb and we look in the fun whether there are associates on the way to kill the officer and release their confederate. you don't know until he look into the fun so how can that possibly be an exigent circumstance? >> i think surrounding facts and circumstances, in footnote night were dealing with a locked briefcase surrounding facts and circumstances might indicate. there's a hypothetical i believe
on on page one in the amicus brief signed by the investigative agencies. it's a classic example of how the circumstances might apply. >> you would never be able to say surrounding circumstances give me reason to suspect that there is a bomb in the phone. to suspect that his confederates are on the way. >> i think you are right that that's going to be an extraordinarily rare circumstance. all i'm saying is if you have that extraordinarily rare circumstance you would not need to get a warrant. >> there is not an authority that i could find were the lawyer is arrested and they want his whole briefcase or read his diary and use site on page seven of your brief the learned hand 1916 case. is that the best discussion you can find?
judge friendly mentions the diary situation. >> it's important if we are going to formulate some standard which limits the extent of the search and that is one of the problems in this case if say we rule for the government in this case or maybe it's not quite fair but if we will from the government we worry and it's not an exigent circumstance. is there some standard where we can draw a line which would still result in a judgment in your favor? it's not quite a fair question. you are not arguing the government's case. >> i don't want to tread on both lawyers in that case but certainly in my case we have asked for tory search were not even the state has contended the amount of information look at is equivalent to what someone could have carried around in the old
days. >> can i say something? >> i'm going to say something first. [laughter] if the phone rings can the police answer at? >> there are cases on that mr. chief justice. all the cases we found our cases where the police had to warrant in hand and they have been held back against the police officers can answer the phone. questionably the police officers. >> a warrant for why? for somebody's arrests. how does that extend to your ability to enter the phone? >> i'm sorry justice scalia. an immediate search of the area. now certainly you could look at the caller i.d. coming through because i would be in plain view but if i can return to justice kennedy's question about the diary because there are couple of important aspects to that i would hope to be able to drop out. the reason i think that you don't find diary cases when you look for them is because people
hardly ever carry a diary outside of the home. it was kept in a private drawer or in where it might be kept in the highly unusual circumstance where somebody did he might have a hard case. this is the opposite world. the modern reality of smartphones is it's an indispensable item for everyday life of a modern professional and indeed most anyone. you can't leave the house without it and consider yourself to be responsible and safe. so to take the world where the police might try to say we can get the diary because of the importance of the categorical rule under robinson applied that into a world where everybody has everything with them at all times. >> including the criminals that are more dangerous and sophisticated and more elusive for cell phones. that's the other side of this. >> justice kennedy before the mound has a balance built in. biggie are not saying they can't look at digital information.
we are saying when they see that they can freeze the contents and then get a warrant and search what they are allowed to searching keep under the rules of that warrant. >> is it significant that the information is not protected by a password? >> at the other side were making an argument that this was not a search then i think that might be an argument they would deploy and i don't want to speak for the government but i think they also agreed that password protection does not matter and it certainly doesn't matter as to what information they get. their position is if we seize a corporate executive smartphone at the scene that is locked and protected under password if we can get that information back in our lab we get it all and they don't have to ask for a warrant. >> i know they argue it doesn't matter but i'm just wondering if your position is weakened by the fact that the individual did not seek the greater protection of a password?
>> i don't think so. people don't lock their homes and they don't lock their briefcases. simply having it inside the phone protected by the person is enough to trigger the amendment. >> if i could reserve the rest of my time. >> thank you counsel. mr. dumont. >> thank you mr. chief justice and may it please the court. as mr. fisher has said mr. raley had been carrying physical photographs in his pocket there's no dispute the arresting officers could have looked at those photo asked to see whether they contained evidence of crime and does not become constitutionally unreasonable so mr. rarely carried photographs in digital form on a smartphone. the digital format does not make the photos make the vote is any less. >> in one of our court decisions in the past a series of
practically speaking a person can only carry so much on their person. that is different because carrying the billfold of photographs is a billfold of photographs anywhere from one to five generally. not much more. but now we are talking about potential -- with digital cameras people take endless photos and it spans their entire life. you don't see a difference between the two things, what has now become impractical? the gps to follow people in a way that prior following by police officers in cars to not permit. >> i certainly see a distinction and we see the possibility in some cases potentially but what
we don't see is that in this case the facts in this case or anything like it. the theory and if i'm only carrying five photographs or letters in the case of the chicago chase -- case they are likely to be very personal very private photographs so i'm not sure the expansion. >> mr. dumont in your argument and associate generals argument also a person can be arrested for anything. a person can be arrested for driving without a seatbelt and the police could take that phone and look at every single e-mail that person has written including work e-mails and e-mails to family members very intimate medications. they would look at all the
person's bank records and look at all that person's medical data, could look at that person's calendar, could look at that person's gps and find out every place that person had recently. because that person was arrested for driving without a seatbelt. that strikes me as a very different kind of world than the kind of world that you were describing where somebody has pictures of their family in the billfold. why is it a marginal case. see it applies to to many arrested applies to everything on the cell phone. people carry their entire lives on cell phones. that's not a marginal case. that's a world we live in isn't at? >> the facts of this case are not someone's entire life on a cell phone.
this cell phone had a handful of contacts. what we understand is they were 250 some odd contacts and 59 photos and perhaps 40 to -- maybe a minute each. >> the quarters to make a rule for the cases and what justice kagan pointed out is take an offense driving under the influence. privacy that we have in this case it is your world then that a cell phone is -- no matter what the crime and how relatively unimportant the crime is. that opens the world to
misdemeanors. >> it's true that the court typically draws categorical lines and that is what the court said in robinson. it's also true there were court has repeatedly said those lines are drawn based on the generality of cases. they are not drawn based on a marginal case with a hypothetical potential. in this case it in the heartland. >> mr. dumont is what i'm trying to suggest to you is that you call it marginal but in fact most people now do carry their lives on cell phones and that will only grow every single year as young people take over the world. [laughter] i mean that's not a marginal case. they are computers. they have as much computing capacity as laptops did five years ago and everybody under a certain age, let's say under 40 has everything on them. >> i think you need to look at the generality of cases and first of all you will not be dealing with minor crimes.
he will be dealing with serious crimes in second you'll be dealing with police. >> are you saying it's up to the discretion of the officer? if that's so then it leads to the next question. will they be able to get a warrant? >> we are trying to draw a line that can be applied by an officer in the field and there is not time to get a warrant either because there is need for information now or because. >> let's leave exigent circumstances out of it. you are not arguing for exigent circumstances here. >> what i would say going back to justice cooley is find our argument is the same things that mr. fisher concedes to justify the search of a person in the seizure of a phone which are they exigent circumstances needing to protect officer safety.
c. is there any basis for the generality that there's a safety concern in a case where the phone is loaded or used to trigger a device or anything like that? >> we don't have a specific case. here's a case in california. it's called natoli. there is one where there is a late night of rest and it starts with a. >> ticket -- speeding ticket off the highway at night and it develops and maybe there's more going on in the person is under the influence and taken out of car. the officer looks at the cell phone. the first thing he sees when the turns the phone on is a picture of what appears to be a driver standings with two assault rifles posing with his assault rifles. i would say that changes the situational awareness of the officer in that situation and valuable information that was necessary at the time and could
not have been gotten later. >> what does that have to do with my question? >> i'm merely saying it has to be safety. i can't think of a case where they stopped him and that there is phone and saw notes about bomb-making. >> i would assume you need to operate the phone to set off the bomb so once the police have the phone the bomb is not going to go off. >> that is true but it's also true of all the objects in the prior cases in other words in robinson where he secured the cigarette pack there's no question where there was a razor blade or heroin. the evidence would be destroyed. >> can i ask a question about the extent of your theory. we are talking about smartphones which aren't many computers but your theory would apply to ipads, computers, anything for example sitting next to a person in a car at their desk if they are arrested at their desk.
anywhere if they carry it because you see a lot of people carrying the ipad or something comparable a tablet of some sort. you're hearing would permit a search of all of those things. >> objects that are on the person or associated with it. it doesn't necessarily extend. >> what is the rule? you are saying on the person. suppose it's in the car in a folder or suppose it's in the passenger seat. are you saying that you don't want to express an opinion about that or talk about what's in somebody's pocket? >> i would say the court has drawn different rules for that situation. if the person is removed from a car and there's reason to think there might be an arrest on the phone they can search and there's not they can't.
but it's a different world. >> suppose i'm carrying my laptop in my backpack -- backpack. >> we need to go back to this volume question because there are two things in the cell phone. there's the volume question and then there is a connectivity and networking question. as to the final question i concede that in other cases what they seem to be concerned about is the idea that enough information and enough time looking at the could build an error marketable fortunate that some of the justices alluded to in robinson. it would be qualitatively different from what has been dumped before. there are differences in government surveillance and this is a choice that person is made to keep information on a phone and to have it but we think
there's a possibility to get to that qualitatively different search but it's miles away from this case and the heartland. >> so there are three possibilities. possibility one smart bomb. possibility two yes, it's just like a piece of paper. they you find it in his pocket or possibility three sometimes yes and sometimes no. which of those three is yours? >> our position is information like this. >> of my three choices. [laughter] call the first choice never accept without a warrant, only coming on the award or three somewhere in between? which of the three choices are yours? >> it's in between. >> okay. my follow-up question is please tell me what you're in between
rule is? >> by and between rural is for information of the same sort that we have been able to seize from person that includes diaries and letters, all other kinds of evidence photographs and address books. for evidence on that sort of the same rule should apply. i would leave the last explanation i would leave for another case. >> i guess i don't understand that you said if it could be. it could be reduced to a piece of paper. all your bank records you could have them on you. all your medical records you could just happen to have them on you. that would be absolutely everything wouldn't? >> bank records you can get from the banks of the subpoena now with a search warrant.
>> the notion that you could get them legally and in some other way is never justified and ill legal search otherwise. >> it goes to the question of how sensitive is the information we are being told. >> cirullo sometimes. you say if it's the kind of thing that the police could have searched for if it was on the computer than they could search for it on the computer. since they can search for everything in your pockets when it isn't the computer then why isn't yours everything? by the way they don't know whether it is or is not going to turn out to be evidence. if it's in your trash box or wherever you put it. i don't know that. so i guess what you are saying is i thought it was category to the really it's category 3, always. why am i wrong?
>> i think you inverted two and three. [laughter] >> that gives you time to think. [laughter] >> if the police are looking or have an investigative purpose to look for information on the phone to see see if there is evidence it seems to us that they should be able to look at the same kind of information they could have looked at in any previous context. >> that's a significant concession because the smartphones funds carry a lot of information that would not have been the sort of thing police looked at before. gps tracking information. the police could never have gotten that before so you are saying that is protective? >> i'm saying it raises a different set of issues. >> it seems to me in order to try to give some answers to
justice kagan's concerns that maybe the distinction ought to be between serious and nonserious offenses. i don't think that exist in our jurisprudence and correct me if i'm wrong. >> that is correct. >> by the way gps information my wife might put a little note in my pocket. stephen remember to turn right at the third stoplight. go three blocks forward. of course you would have put in the information that showed where you were going as long as it was on paper. now it's in a gps so how does your role help? >> the gps would see if he did in fact turn right and drive somewhere else. [laughter] >> again we can conceive of situations in which the amount of information the kind of search would lead to a qualitatively different.
>> you could amend your answer to say not just anything that somebody could have had that a person could have had a diary that records every place the person has ever gone in the last year. if theoretically possible but you could say an analog in the pre-digital era we have a similar -- similar to the jones case preview of a rule of law that was established in pre-digital area and now you have to apply to the digital era where the technology changes a lot of things. but if there is a close analogue in the digital era to something that would have been allowed in the pre-digital era that may be a different story. >> we certainly think that's right and we think that covers the information in the photographs in the short videos. it certainly covers anderson.
>> and you were not willing to limit your position to searches that either/or in order to protect the officer or in order to preserve evidence or number three in order to find evidence of the crime of arrest, you are not willing to limit it that way? you would say whatever's on the person you can search? >> that is by far the most plausible one. so to say because. >> that gets you into the arrest for not wearing a seatbelt. it seems absurd that you should be able to search that person's iphone. and you can avoid that if you say -- like the vast majority cases this is not going to be a problem unless the officer can reasonably look for evidence of
the crime of arrest. that would cover the bad cases but it won't cover like a seatbelt arrest. >> there is precedent in the court obviously for that rule. there's two things who would say about that. there are to be an objective standard new-line with these fourth amendment -- is should be was there probable cause to arrest and what was the probable cause to arrest for and also it should include the plainview concept. >> the arrested person has photos pre-digital age of course you can look at them. on the form -- phone there are photos. absolutely analogous there are 10,000 indeed his entire life history but in your role can the policeman looked at the photos by analog or not? because there are 10,000. what is the answer? >> in theory yes they can look.
>> what we have is by the way i think there are very few things that you cannot find in an analog in the pre-digital age searches and the problem in almost all instances is quantity and how far a field you are likely to be going. why accept your rule? >> the fundamental rational basis of the robinson ruled i think is the fact that the arrest as justice. >> effect of the arrest necessarily and legitimately largely anything he or she has chosen to carry on the personnel. modern technology makes it possible for people to choose to carry a great deal of information but that doesn't change the fact that the
reasonable expectation of a person is subject to arrest as the police will search the person. >> are you saying essentially that nobody has any expectation of privacy or somebody has to dramatically reduced expectation of privacy in anything that the person actually wants to keep? >> in other words one has to keep on cell phone at home in expectation for privacy? >> what we are saying is the choice is that consequences and the consequence is carrying this on a person if you're arrested the police will be able to examine it to see if there is an arrestable crime. >> thank you counselor. mr. dreeben. >> mr. chief justice and may it please the court. i think it may be helpful to the court before exploring to briefly understand why there is
a categorical robinson rule and how cell phones implicate many of those concerns. the categorical robinson rulers wanted to the fact that when a person is carrying something on their person and they are subject to a legitimate proble problem -- probable cause arrest their expectations of privacy are reduced. not a lemonade if that's considerably reduced in the government on the other hand has several very compelling interest at the moment of arrest that are indicated by conducting a thorough search of the person in the things he has. avoids the distraction of evidence and protects officer safety and it allows the discovery of evidence that's relevant to the crime of arrest to enable prosecution. >> the understanding was here you can seize the phone and you can secure the phone and you could go to a magistrate and
within an hour get per marsh -- permission to search but what is the reason your? the instrument itself is not going to be in danger because they have disabled it. so i don't understand why to cut the wind out of this picture? >> several answers to that question justice ginsburg. you could probably say the same thing about everything seized under robinson and edwards. once it's in the place of hands they could part in the back of the patrol car in the trunk and it would be safe than they could get a warrant that the balance has always been struck at the moment of arrest to allow the officers to fulfill the compelling interest in the matters that i previously described. the second and i think very critical thing about cell phones as they do differ in the amount of information that a person can carry on them and the amount of revelation about a persons life. that is true. they also differ in that they
greatly facilitate criminal activity. they contain a great deal of evidence and most critically they are subject to destruction in a way that ordinary physical items are not. even if an officer has a cell phone in his hand he cannot guarantee unless it's disconnected from the network are somehow protected from the network that there won't be a remote like signal sent to the phone. >> do you have cases where that is cap and? >> have anecdotal reports from the fbi that has happened and they put into the question of to what extent can you protect a phone to the use of things like faraday bands. if you threw a phone into a faraday ban which is supposedly going to block network signals when you open it up it has to be similarly shielded shielded or will pick up a signal from a cell tower and that will wipe the foam. the fbi try to build a faraday room in a building that they later discovered verizon had put a cell tower on it and that cell
tower put out a strong enough signal to richard. >> we have a case where this has been so bit they had a rule where they can't in michigan and vermont. any instance out of those states where these scenarios have taken place? >> i can't speak justice breyer. >> you don't know. so isn't this a problem that might be postponed because we have warring technologies etc. and you are saying now we should allow searches of small cell phones because there might be a technology that hasn't yet in fact been used in many of the states that have this rule. that sounds a little hypothetical and i'm not sure how to handle it. >> i think clearly the technologies available in growing technology to wipe funds remotely but the other critical problem that comes after the point about getting a warrant is
encryption technologies increasingly being applied in cell phones. that's something that's clearly on the rise and when a phone is turned off corey locke kicks in and the phone in cripps it can be almost impossible to. >> let me stop you because you are making an argument in three related questions, okay? why can't you just put the phone or in airplane mode. >> can answer that one first? first of all is not always possible to find airplane mode on 500 or 600 models of phones that are out there. the officer is a lot of things to do when he arrest suspects. say he arrested five suspects in a car and they each have three cell phones. trying to find and put each one of them an airplane load and go a further step. >> you are confusing me because you've been out the search on the scene if you have had enough time at the precinct to put it on airplane mode -- i'm a little
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