File Under: You Have Got To Be Kidding Me

When a member of the Supreme Court asks, “What’s the difference between email and a pager?” then maybe it’s time to reevaluate things.

I’m in Park City (Mt. Rushmore tomorrow!) and in need of sleep, but this issue is important to me. The problem with the Supreme Court re: technology is the court moves at a linear snail’s pace. By the time a case reaches SCOTUS, it’s gone through at least 2 other court systems, each of which have their own backlogs. Add in discovery, motions and all the other things that must be done to have a trial and judgment, and you’re usually talking 3 years at the low end. That FCC v. Comcast case that the web was abuzz about a few weeks ago? Filed in 2007. Slowness is the price we pay for a full and fair review process, and that’s usually ok with me. But technology and its social impact changes almost overnight, so we unfortunately end up with a court that’s often deciding the law of the land according to facts established 3 years ago. Three years ago, foursquare, tumblr, twitter, hulu and pretty much every interesting technology startup today didn’t exist or was basically in utero. As a result, neither did checkins, microblogging, tweeting or streaming network television. These companies are changing the dynamics of the world (and IP law) daily. Toss in a severe deference to stare decisis, and it’s obvious that the Supreme Court just isn’t equipped to handle such fast-paced change.

But when it comes to laws, slow isn’t always bad. It’s small-c conservatism that I can usually get behind. The court process tends to prevent reactionary rulings, and that’s a good thing. Still, I don’t think we need to live in a country where the standard for personal jurisdiction in internet cases is based on whether a website is “interactive” or “passive.” That made some sense at the time, though maybe not to people who saw where the world was going. But in the context of the case facts and court procedures, I can understand the ruling. Nonetheless, the nomenclature is clearly of another era, and now absolute useless as precedent or as any sort of guide for a body of power.

I’m not sure how I’d fix this issue, but I have at least one half-baked idea. I’m of the belief that the court system wasn’t set up to handle a lot of the issues it now faces, especially technology issues. It’s like trying to build a highrise on a foundation laid for a barn. My idea: apply the bankruptcy court model to internet cases, that is, create a separate system of federal courts of equity with exclusive jurisdiction over cases where the primary issue is inherently linked to internet technology. These courts would quickly gain expertise in technological trends which would lead to more efficient and predictable rulings, and because they’d have equity powers, they could adapt to changing circumstances without resort to outdated precedent. I’ve been pitching this idea for MedMal for a while now to help decrease award volatility, but I think it would fit even better for internet-dependent cases.

I’m sure I’ll have more thoughts on this in time. This is an issue often ignored in the patent law debates going on among the venture community, but it’s important insofar as the courts are the bodies responsible for interpreting statutes—they decide how laws are understood and enforced. New legislation isn’t enough; we need to address the interpretation mechanism too.

jared