we're doing a great disservice to the dignity of the court to make bush v gore or citizens united are captured in low resolution audio files and that's it. and moreover, because of various technical things, oftentimes webpages are cited and arguments all of the time but someone did a study more recently that said, about 30% or so of all of the links cited in these arguments are now gone. so we're not taking that sort of technical step of archiving the context of these decisions at all and as we further rely on technology, especially the web in order to do that, this level of context being removed seems to be a great disservice to our children and to the people that are going to come after us. and finally, it's about accountability. i don't find that argument to be the biggest and most important one.

although it is important. i just find that my work both inside and outside of the federal government, you know, going to someone, anyone and saying hey, i would like to place a camera behind you so i can watch and scrutinize everything that you do in realtime tends to be a tough sell. so i tend to lead with more substantial arguments like, this does not reflect on the dignity of your job. so i think those are the three things that matter the most to me around transparency. and why i care about this issue. >> good morning. i want to thank gabe for inviting me and tony and dahlia for hosting it. i'm excited to be here. my skin in this game is pretty serious. i teach constitutional law at georgia state in atlanta. it's ironic to me that the supreme court might be the least transparent court in the united states because at best i am with judge pozner that it is a

political court. i in fact don't think it's a court at all. to the extent there are transparency issues to begin with judges i don't think the supreme court really counts as a court. i will give you a great example of that. every year thousands and thousands and thousands of people send surpetitions to the supreme court. lawyers spend hundreds of hours working, fee are paid, parties are incredibly vested in this. maybe the most important decision the justices make is which cases to hear because if they don't hear a case, then whatever happened at the appellate level is the final say and we're done. and we don't even know which justices voted to grant cert in a particular case. this is an incredibly important public vote on a matter of public concern and there's simply no reason why we shouldn't know this. and it's relevant, truthful information about a public body. now, they may argue that too much would be read into who decides to grant cert and all of that.

but the bottom line is, i was litigating supreme court cases in the 1980's with some of the leading litigators at the time, and at the trial court level, we had a short state case and the entire effort was to make the record such that justice o'connor would be pleased. and this was five years before o'connor would even see the case. so much speculation going on anyway. if we know that four moderates vote to grant cert in an abortion case, we have some idea where justice kennedy might stand or at least where they think justice kennedy may stand. that might be wrong. it may be right. but who votes should be a matter of public record. which leads me to my overall point. with the president, with the congress, with state lectures, -- with the state legislatures, there is a presumption of transparency and then there has to be a good reason for secrecy. if there's a good reason for secrecy, to print that and presumption can be overcome. when it comes to the supreme court of the united states,

there is a huge presumption of secrecy and only if that's overcome do we get transparency. and that to me doesn't make any sense at all. i have now run this by a lot of supreme court litigators and law professor and no one has yet given me a good reason why we can't find out who voted to grant cert in a particular case. if we don't have a good reason for it, the public should know relevant, truthful information. >> i'm bruce brown. i'm executive director of the reporters committee. for freedom of the press. and i'm here because the committee was underrepresented as a -- i thought we had to balance the panel out. for the reporters committee, which represents the interests of journalists and covering institutions like the supreme court, obviously, we care deeply about the immediate access to see and hear what goes on in the building. and we care about it not just for us but, of course, public at large.

there's a great moment described in the book, fourth estate in the constitution, about the oral argument in richmond newspapers which came along at the time when the press had been losing access cases when it had been arguing for some kind of special privilege that it had. laurence tribe, who argued the case for the newspaper petitioners is after just another example of the press coming in and asking for some kind of special protection for its own interest. and tribe responds and says no, the access we're seeking is the access that belongs -- excuse me, to the general public. and that was the core for the access law, that was the moment that tipped the scales and the court in richmond newspapers then grant this historic decision recognizing the right of access. again, not just for the press but for the general public. and when we at the reporters committee think about access, we're thinking not just in the

short term. can we get reporters into the court to cover the hum of what happens in a particular news cycle building, but also the long term? dahlia mentioned papers and supreme court papers. and one issue we're also very interested in is trying to really force the court away from this ad hoc system of each justice deciding on his or her own when and how and under what circumstances to make papers available and to move instead to something more regularized like what you have in the presidential system now, which was put in place by legislation in 1978 deem those papers property belonging to the public. and not subject to the particular decision making of any particular justice when he or she leaves the court, and when you ask what access means to me, everyone that responded in terms of extreme particularity, i wrote some

statistics down. my wife's grandfather was a friend of justice douglas and we discovered when he passed away that he had a number of letters from douglas and we were kind of trophy hunting going through the papers and seeing the stuff. so i looked it up online to see what i could find out about the papers of justice douglas and where they were. and, of course, you go to the supreme court website and immediately send you someplace else because it's not the kind of thing that they are collect and gathering, although they should. as you make your way through a number of other websites, i found with great particularity great information about the papers of justice douglas, which i will share with you. they're at the library of congress. there are 1,787 containers of papers making up 716.8 linear feet. there are a total of 634 -- excuse me, roughly, i will give

you an approximate now, 650,000 items. one box of classified documents and seven oversized documents. that is transparency. that gives a member of the public, reporter, some sense of a particularity with which it's disclosed there a confidence that a justice who served on the court for what, 45 years, something like that, that those papers are preserved, they're out there for scholars, journalists who are writing books. when you see something like that in relationship to one justice, it begs the question, why can't we have that for them all? thanks. >> all right. i'm sonya west and i'm really honored to be on this panel today because this is an issue that is really near and dear to my heart. i was very briefly a reporter in my college and post-college days, including internship at the reporters committee, which was amazing. but decided to go to law school

with this hope of defending journalists, which i did for a few years after law school, including in california, trying and usually failing to get cameras into the courts in california system. so this is an issue i had a great honor of clerking for justice stevens so i got to see sort of behind the scenes what was going on with the court and also became very interested in what the court coverage was of what i was seeing. and that's when i became a big fan of dahlia's work. because she did such a great job and became an even bigger fan of tony's work, who i already had been following. and i'm now associate professor at the university of georgia, where i teach constitutional law and media law and i write about press issues. and so in terms of what transparency means for me, i'm going to mimic a little bit of what eric said but i feel like what transparency means is the presumption should be a right of access. and that the burden should be on those who oppose access.

in this case the justices, that whether or not there's actually a first amendment right of access in some of these issues, i think there are arguments that there could be. we should nonetheless have sort of the first amendment presumption that we're going to have public access to this information. and the problems i'm seeing right now, and here i am going to talk about cameras in oral argument even though i agree we should not be completely focused only on that issue. there is a wide range of other issues that matter. is the reasons we're getting the responses we're getting to the arguments clay laid out really well are not meeting that bar in terms of why we can't have cameras at the oral argument. and the arguments we're hearing from the justices, and we just get this piecemeal when they're asked about it. and they're asked about it all the time when they appear at law school or panels, basically fall into three concerns. one is concerns about participants. that they will engage in show

boating and grandstanding. that just doesn't add up when we look at what's going on in all of the other courts that are allowing cameras in, all 50 states have cameras allowed into their courtrooms in some form. canada's had cameras for more than 20 years. this issue of showboating just doesn't stand up. it also doesn't make sense when you think about what a big deal oral argument at the supreme court is. justices already know that everyone is watching who asks the first question, who sounds a little bit critical in their question. they keep track of who makes the audience laugh. they know they're on stage here. advocates know, willie attests to this. they're not thinking about the audience. they're thinking about justices and making their points and reading justices. the idea showboating would occur i think just doesn't add up. the other concern is about what the media would with w camera access. concerns about snippets and sound bites. belief there's concern with jon stewart and stephen colbert would do with these clips. but again, that doesn't add up

with the fact that already what we tend to go from the court is snippets and sound bites. we just get it in audio form or we get it in quotes in the newspaper. we just hear about this question or that question. and so the area we're hearing more these days from the justices and i find concerning is that we're hearing from the justices, even justices sotomayor and justice kagan at the confirmation hearing supported cameras in the courtroom are now starting to say these things. this is the trend. we see nominees start out in support. get on the court and start to change their mind, which suggests we can't really just wait out this issue. it's not just an age issue. this is a concern about the public. we keep hearing this concern that the public won't understand what they're seeing. they won't understand oral argument is just part of the process. they won't understand that the justices have to be harsh on both sides.

they might think someone is getting ganged up on. i find this to be a very concerning issue because it suggests that more information is actually going to be bad for the public. that the public needs to be shielded from information. and it does seem to have an elitism to it, that already those of us who do read the transcripts and listen to the audio or read the reports from the supreme court press corps, that we're the types that can understand where oral argument falls in the process but tv would reach a different kind of audience who wouldn't understand it. so i find this very concerning and i certainly believe it doesn't meet the bar of is this argument good enough to go against our presumption that i think we should have of accessibility and openness. >> i want to give you a chance to react to one another but i want to ask another question. and i think it clicks at one theme we're hearing today. undergirding this conversation about why the courts are different from the other branches of government is just i

think this sort of chronological argument we're different because we're different. we're just different. if there's more transparency, we will stop being different. yet almost every variation of the problem of transparency comes down to the idea, look justices are different. that means their papers are treated differently. it means their decisions are treated differently. it means access to them is treated differently. we can't see the texts of their speeches because they're different. i wonder if anyone wants to take a crack at this question of are they different? are they just different? and if they are, you know, some of these arguments begin to make sense. so, clay, looks like you want to go. >> i think to an extent they're different because these are the only people inside of government that don't need television in order to get their jobs. you know, i suspect that a member of congress cannot get elected without television. i suspect the president cannot get elected without television. without stepping in front of a camera. without being in the public. whereas a justice can.

so this idea of i guess the confirmation hearings or whatever, but this idea that television or video or transparency is part of their duty becomes sort of difficult because it wasn't part of the job interview process, right? so i mean that would be my case for culturally why they are different. i also think that, you know, you have to look at the supreme court as a leader, so to speak, for the entire judicial branch. for all of the courts. the interesting thing is it when you look at the supreme court's use of the internet and start comparing it to the lower

courts, the supreme court is actually doing quite well. sort of like my 1-year-old is doing quite well at speech compared to my cat. but still, you know, he's doing quite well. and i think that you're not going to see much change in this field until the supreme court changes because the supreme court represents the end of someone's career all without cameras, all without television, all without transparency. and as such, why would i -- why would i change now when i never had to do that my entire career? i never found the people at the end of their career are the first to embrace new technology. so the point is not different in any way that would justify reversal of the presumption of transparency in government. >> sure. i meant culturally. >> and also they do have the nomination hearings -- not

really hearings, but they're on tv. and there's no problem going on talk shows to hawk their books. but the truth is, the supreme court justices are less like judges than any other judge maybe in the world. they're the only judges in the world with life tenure that serve on the nation's highest court. the only ones. their decisions as judge pozner repeatedly said are essentially political. the only secrecy -- i don't want to see their draft opinions. that is fair. i don't want to hear deliberations with law clerks. that's fair. everything they do that's public should be public. and i will give you an example. it's just a small thing but it's not a small thing. justice scalia was at a conference in atlanta last friday. the only person who said you can't tape record, video record my comments is justice scalia

and then it turned out that it actually something happened, the supreme court justices, and now no one gets to see it and a public official making a public speech, ranted about how same sex sodomy and abortion are not in the constitution and shouldn't be protected and ranted and got embarrassed at the end and no one saw it. if he's going to come to atlanta and go to the governor's mansion for a reception and appear in front of 500 people in a room and give a public speech, it should be recorded and there's no good reason why we should have had to accede to his request that it not be recorded. >> why did you? >> he wouldn't have come otherwise. >> to pick up on these remarks, it's self-evident that they are different in the sense that other than justice kagan, they've come from one cloistered life to another. the route to the priesthood is through the federal appellate courts and these institutions are bundled up so when they get to the supreme court, they don't reflect the range of professions and exposures in public life

that other government people would have by the time they got to the the high rung. >> you're saying they're different because they have super thin skin? not because -- >> no, it's because they're culturally -- transparency is not a technical issue or a legal issue, it's a cultural issue. when transparency is a technical issue, it fails, it almost always fails. if you look at the president's open government agenda, when the president on day one was like we're going to open up all of this data and you go to data.gov and look at the last time the data sets were updated, it was

2009, 2010, and that's because it was very much a technical issue and not a cultural one so if an institution isn't ingrained with the culture of technology, those transparency initiatives will often fail. >> willie, did you want to respond? you lunged. >> i just couldn't see. i think if anyone who agrees with eric that the court is just another political body and they're doing what they want, they are imposing their will in all of these -- >> anybody disagree? >> absolutely, i'm willing to disagree with you firmly and i think that because they are not public officials whose job it is to appeal to the public, right, if a member of congress or the president does something that does not stand the light of public scrutiny meaning it

offends a lot of people, they may be doing their job wrong. that is not true of judges or justices. that is what they are paid to do and for exactly that reason, the fact that their -- and their opinion might be unpopular, who cares. the fact that their private votes, the reasons they give in conference -- do you think their votes in conference should be public? >> no. the preliminary vote, it can change. >> their deliberations are not public. oral argument is part of their deliberation, too. it's supposed to be a fleshing out of what is important here. >> it's public already, though. >> absolutely. that's a separate question. public in what way, but i think what we need to focus on is who are these people, what jobs do they do and which parts of it kind of are -- they're just public officials running around giving speeches, selling books, and taking money from the public treasury. the fact that they operate a branch of government, they have employees, they, you know -- they, you know, take gifts and travel, accept travel and so on, that's all fair game but when you're talking about the job that they are doing, as judges and justices, i think it's

different and equating them with members of congress and the president is a false -- >> i would throw in there that the ways that they're different argue for openness even in terms of a legal branch and not getting into the political argument. they don't deal with witnesses, they don't deal with juries, things that could raise valid issues about those sensitive things. the issues they deal with have the most national importance. so, yes, they have tenure which almost all other government employees don't have except some federal appellate judges so if anybody should have this openness, it would be them, i would think. >> they are the only governmental officials in the western world anywhere that are final, leaving aside the constitutional amendment process, they are final, they are unreviewable and have lifetime tenure. they should have the most

transparency for those reasons. >> one more veillance to this is how are they different from canada? because i always remember, it always comes back to canada but i remember hearing ruth bader ginsburg and beverly mclaughlen, the justice of the canadian supreme court talking about this and they say canada has cameras in the court. >> nobody cares about canada. >> that was justice ginsburg's argument. >> the canadian supreme court most of the time can be overturned by a super majority vote of the legislature. these men and women are final. >> i want to ask a question that i think sweeps in some of the things you just talked about and that is there are work-around to all these rules because not just the pin camera. that's a new and interesting workaround but when justice scalia says nobody's going to cover my speech, what happens if someone tweets it or clarence

thomas came to u.v.a. a couple of years ago, you were sworn to secrecy and every word was published the next day in politco with mistakes. justice alito goes to speak at a dinner and someone just takes a photo of him and suddenly the media has captured it so it seems to me that more and more when the court puts up barriers to transparency, what happens is what rushes in is less than what they would afford us if they would let us in so i wonder if anyone has that's about, is there a tipping point -- i'm thinking about the healthcare cases what they were handed down and for the first couple of minutes, it was wrong and maybe the court has no obligation to help us get it right.

>> last friday, they got it wrong and in this case they did it to his benefit but it could have been to his detriment and it would have been better if someone could say, let's go to the videotape. >> i have screen shots of the front pages of fox news, msnbc and cnn on the day of the -- and the fox news said, obamacare struck down, and msnbc said, supreme court upholds obamacare, and cnn said, breaking news, supreme court issues response. we'll tell you more in a minute. i find that apropos and demonstrative of our media environment but the interesting thing here is that we're in a more -- i think because of the internet and because of technology, we're in a more

politicized environment than we've ever been. look at what happened to shirley sharad at the beginning of the administration when a 30-second sound bite ends up on the glenn beck show and you end up fired for words taken out of context so i think there's a level of demonstrable fear and healthy fear of public scrutiny. when i was working at the sunlight foundation, part of my issue with sort of transparency as a panacea is not only are you arming the smart lawyers but you're also arming the glenn becks and keith olbermanns of the world to advance things that may not be the truth. unfortunately, the only real cure is a good transparency and i look at the political, activist discourse around things like citizens united and i wonder how much better our public discourse would be if those deliberations were a bit

more public. i understand that the oral arguments are public but a bit more public. if the public could see those arguments, and i wonder what harm this lack of transparency is doing to the public because our discourse has to be distilled into what gets delivered to us through fox news, msnbc and cnn, which seemingly on that day couldn't make up its mind. >> it's fair to put the question back to you, with an analogy. last summer when disclosures were made, the department of justice had subpoenaed a. p. phone records and seized emails from a fox news reporter, holder launched the process to work with the press on trying to figure out what reform needed to

happen on media subpoena policy. i would wonder after some of the glitches in reporting the healthcare decision, why doesn't the chief justice wander down the hall at some point or reporters try to wander up the hall. >> there's no wandering up the hall. >> we need to start talking. this was a monumental decision, the reporting of it was flubbed and the press needs to work with the court because it's the court's own legitimacy at stake. is that a possible conversation you could have to launch a dialogue the same way we've launched one with d.o.j.? >> it's a great question. i'm not in that conversation. i'm looking at tony, he would have spearheaded. the court disaggregates the media's problems from the court's problems. there's a famous story of the press going to then chief

justice rehnquist and saying please don't dump six 100-page decisions on us and ask us to get it all right. can you space out decision days so we can do our jobs and get it right and the response literally was, why don't you just only cover some of them today and then you can cover some more tomorrow as though the news happens magically at the caprice of the court so i think that the court thinks these are the media's problems and the court does not feel there's a cost to fox getting it wrong or cnn getting it wrong for two minutes. >> there was a very substantive problem underlying this procedural transparency issue. i know there will be disagreement about this but the substantive problem is the justices really feel historically they are special, they are different, they are not political and it's a temple on a hill. they really feel that way so they're not going to worry about the press.

they're not going to worry about all kinds of things that other governmental officials have to worry about. we can't develop this today but they're not special. their opinions are not based on law, they're based more on values and not politics republican and democrat but personal life experiences, politics and they are far less special than they think and the faster we get more transparency, the more that will be clearer. >> to circle back to canada, they do this differently in canada and from my understanding, the press corps, someone comes from the court and says this is what the case is about, do you have questions, this is how we can explain it and i think there's quarantine for a couple of hours where everyone reads and figures things out. i'm not sure how i feel about that exactly and they do let them know big cases are coming to be prepared but there is a different way to do it and i

think what we're hearing here is from the political branches, there's an understanding, a love-hate relationship with the press, the press hurts and helps what they're trying to do and with the court it's more just the apathy/hate and the idea that the press could help them in terms of if they worked with it in terms of public understanding of what it is they're trying to do is what's missing and it's a shame that they can't get more into that mindframe. >> willie? >> i'm curious. when they let some people into the cloister and give them a peek of the opinions, does it include bloggers? does it include interested members of the public who might want to talk about it on a radio show? >> i wish we had that problem. >> i don't know the answer to that. we have a supreme court that gives out press credentials so it's making those decisions on questionable grounds. >> reserved seats to members of the institutional press and denying them to people who might have a blog but everybody gets the decision at the same time, right?

>> right. i'm not advocating we do things exactly like canada because i think the two-hour quarantine is a little questionable constitutionally. >> scotus blog doesn't have a press credential on the supreme court. if any other branch of government would making a decision so unbelievably stupid, it would be -- scotus blog is where we get our information about the supreme court and they're denied a seat at the table. that is crazy. that's an argument that tom goldstein that owns scotus blog and argues cases, it's a conflict of interest but that's not for the supreme court to decide. >> respectfully, isn't that a circular argument? scotus blog has covered the court and made itself essential so the court has to let them in?

>> yes, of course. it's the press. yes. sure. >> i certainly agree with you that they're the press but what form of access is it that -- what are you focused on? it's not a hostile question? what access for scotus blog are you focused on? >> simon, a supreme court reporter for the "new york times," gets to hear the oral arguments, gets to hear the decision announcement, gets to see justice alito doing this, he gets to see that firsthand, in person, and he was talking about this last friday in that it's hard for him because he'd rather be writing but he wants to be in the room because that's the most important over time. scotus blog's amy howe is not in the room and she doesn't have that benefit of seeing it firsthand with all the emotions attached and at this moment in time, i think scotus blog deserves a seat in the room more than the "new york times" because they're trying to live blog it. >> isn't lyle in the room? >> because he has an independent press credential, not as a representative of scotus blog. >> one thing i like to tell people is that when we had to decide when the healthcare cases -- sorry to keep perseverating

on the healthcare cases, it was traumatizing so i'm not over it yet but i'm working through it. one of the things that was super emblematic of what eric is describing is you literally had to make a choice between either being in chamber, watching this historic hand-down, watching john roberts read his opinion, watch ginsburg read and then knowing that when you were finally allowed to leave, 19 hours later, because they were reading, it was over, right, it had been tweeted, it had been discussed. wolf blitzer had been talking about it for an hour and a half. for purposes of my editor, it was over but i chose to be there but the other choice was to be in a room where you could hear it but you couldn't -- if you left, you were stuck so you could hear it but not leave or you could be in a room where you could neither see nor hear but you could write.

it was the three monkeys, hear no evil, see no evil. you had to choose which monkey you wanted to be and it seems to me that in 2012, was it 2012? we need to up the ante on the monkey. that's not how to cover a major historic opinion and i think it loops back to bruce's question which is does it affect the court is that we didn't -- maybe it doesn't. maybe the court didn't care. >> i'll tell you, there's two ways to look at this in terms of transparency, goes back to my opening argument. maybe the court didn't care. maybe the court shouldn't care. but the video could be released a year later or five years later and it would still have an impact, right? it would still be profoundly useful to the legal profession, to law students, to the -- whatever the 50,000 law students that weren't allowed in the

room, and i think that we have to start thinking about transparency as being a bit larger than helping reporters. and it being about reflecting the dignity and majesty of the court and the importance of the law, which is -- i mean, the other part of this argument is that the law itself is completely locked up from the public and the only thing that's more morally offensive to me than the judges being locked up to the public is that i have to pay as a citizen of the state of georgia, i have to pay a company called lexus nexus $800 to get access to the official code of georgia. that is gross that we've privatized that is -- that our courts, our courts are basically paying westlaw hundreds of millions of dollars for access to its own records. this is preposterous. it's a thing that i think is hampering the legal profession. it's hampering our own history and i think it's something that does not reflect the values of either the constitution or the united states. >> that's -- thank you for saying that. that's a useful frame. we've got questions and you're encouraged to write questions

and hand them to a person who's going to collect them so i'm going to ask the first question that i've got. since asking nicely appears to be an ineffective strategy so far, how do you or your organizations propose to make actual change and increase transparency? >> in 1802, i think it was, congress shut down the supreme court for a year for really bad reasons but they did do it. they turned the candles off. i think congress will probably never do this, i think it will be fully constitutional for the

congress which funds the supreme court to give the court a choice, either televise your oral arguments and decision announcements or do it with no heat, no air conditioning, no lights and fund yourself. that's a fully constitutional use of congress' power and i think they should do it. >> does anyone have a less radical notion they'd like to float? >> i think the issue, the credentialing of the scotus blog has been kicked around for a while and i think it would be interesting to see that taken to another level to force the court to examine its own practices publicly, in a transparent way and i think that part of this effort, that we're engaged in today, is part of an ongoing initiative to focus public attention on these issues and to hope that the people in the building who are there to protect the long-term reputation of the court, we just touched on it a few minutes ago, how do you get them to focus on the fact that they need to protect their own institutional legitimacy and essential to that is this transparency initiative.

when you look back at the richmond cases that were important to the media, at least the press and court were in sync lack then and what seems so discouraging today when you think about trying to get reform by bringing lawsuits is that we're so out of sync. the press and the court are so completely out of sync today and there was something special about that moment in the 1960's and 1970's when they were working together and they're not today and it does make me think that the kind of strategy that we used in those decades probably will not be the most effective one today. the litigation strategy, in other words it. >> i think the cameras in the courtroom thing is sort of a done deal. i think 10, 20 years out the, you know, i'll have a small camera in my eye glasses or something like that that will be -- the pen camera is the start of it, but what's the supreme court going to do?

ban people from wearing glasses in the supreme court? >> yes. >> with cameras in them. >> they'll are undetectable. i think cameras will be within the next 20 years undetectable. the pen camera is like the tip of the iceberg and that that technology will solve that problem. >> right now if you walk into the d.c. federal courthouse, you know, you have to -- i think they make an exception for lawyers showing up for a case, but they will make you surrender your phone that might have a camera. five years from now, you might surrender your eye glasses. >> removing my ability to make phone calls is significantly different than removing by ability to see. >> yeah. >> right? the other stuff, though, personal financial disclosures

and stuff like that, you know, who knows how that will happen or if it can and ever well. >> let me segue to the next question because we have heaps of them. who gets -- this is just an informational question. who gets to decide on the changes in the policies about transparency? are these decisions taken by the chief justice? does the court vote in is the staff voting? >> we don't know. >> it's really unknown whether if congress passed a law, whether or not that would apply to the court, whether they could make them do that. we really don't know. >> the closest indication we got was when they closed the front doors, they published a dissent by justice breyer saying we should still allow people to walk in the front door of the building. >> congress could do this. if the political will was there, they have the money, they could

do it. >> justice scalia, i'm sorry -- it's the chief justice making the decision about audio policy, we know that, right? that the chief was making the decisions about which cases were going to be audio, same-day audio. i think that was -- i think it was clear. >> that's my understanding, right. >> it was a case-by-case -- today we'll release this one but the other ones you'll have to wait until friday but when they decided to start releasing audio on fridays instead of at the end of the term, i don't know if that was scalia. >> when justice douglas got sick and had a stroke, the justices took -- americans don't know this -- a secret vote and that they decided they would not decide any case where justice douglas' vote would matter. the eight justices secretly decided they would not decide any case where justice douglas' vote would matter.

the only reason we know that today is because justice white was so offended, he wrote a public letter about it. had he not done that, he would never know. they view themselves as having no obligation to tell the american people that justice douglas was so sick, he couldn't decide a case and they would decide arbitrarily which cases in which his vote might not matter. >> that goes to the justice scalia recuse, where he refused to recuse himself in the death gate oral argument and did america the courtesy of writing

us a long letter explaining why he didn't think he had to recuse. the legitimacy of them not just as individuals but the court can't help but be raised in the eyes of everyone to see the behind-the-scenes thinking. it's incredibly material when they recuse and why and the idea that we kind of know today why justice scalia sometimes chooses not to recuse himself is not a standard, right? >> don't get me started on the healthcare case. we'll be here all day. >> are the -- eric, you're not allowed to answer this one. are the justices fundamentally afraid we're going to learn they're not as neutral as they say they are when they're deciding cases? is that the fear? eric? >> yes, unequivocally, yes. they spend -- i'll do it real fast. they spend so much time and

energy in their written opinions which is their arguments as to why they don't have to be transparent, because everything comes out in the written opinion, hiding the reasons why they do the things they do because they'll have text, history and precedent. >> where do you want to take the cameras that will find the hidden -- >> i'm just suggesting the answer to the lack of transparency can't be the written opinions is what we share with the public because they're dishonest written opinions. the real reasons why they decide the way they do is not in the text, history and precedent. that's important but it's in a whole different set of values and life experiences which is why scalia and ginsburg who are good friends and go to the opera together, disagree on virtually every contested issue of constitutional law that gets to the supreme court. it's not because they have different skills. that's because they have different values and they would

never admit that in public and that's crazy. >> i point out that transparency won't solve that problem. >> i know. >> just because you turn the lights on in a roach filled apartment doesn't kill the roaches. >> i didn't use that phrase. that wasn't my phrase. let me be clear. >> you see what i'm saying, it turns out sunlight isn't a particularly good disinfectant, alcohol is much better. but when you turn the lights on, shine the lights at things, the shadiness just moves to the corners. the roaches crawl under -- >> disagree. because scalia's a little bit bullish attitude comes out in oral arguments, i don't think he would change that and knowing his character, a little bit of a bully, with all due respect, is important to the american people. we should know that he is a little bit of a bully. we should know that justice thomas never speaks. >> we'll know he's a bully but as you said to begin with, it's final. he's there.

he's a lifer. so it's not going to change anything. >> i think it's true that general fear is part of this. justice breyer has said, fear of the unknown, we've done it this way for a long time so let's not change anything and a sense that this is an institution we need to protect and we don't want to make changes and fear of loss of privacy is clearly fortunate justices alito and others and loss of anonymity so there's fear that's part of this. >> they have to look at the deeply and popular nature of the other branches and think that maybe ignorance of what they do is better. >> what is their approval rating? >> that's what's so sad because

anybody who's been to oral arguments, it's terrific. >> general fear is part of it. fear of the unknown. we just don't know what is going to happen. we have done it this way for a long time print let's not change anything. we don't want to go making changes. there is certainly overall fear. >> they have to look at the deeply unpopular nature of the other branches and think maybe ignorance of what they do is better. >> what is their approval rating? >> higher. >> that is what is so sad. anyway is then to oral arguments, it is majestic. the questions are so smart. everything is prepared. it is a terrific experience. >> if he would remain the same with cameras, that would be great. but that is what worries them. it wouldn't be exactly the same. everyone else is convinced it would be exactly the same. >> no. no. i'm not sure. that is not true. i don't know what would happen. i'm not smart enough to know. the question is presumption. the presumption should be an openness. only with a good reason should be secret. the burden of proof would be on the justices per you can't say i don't know. that's not a good reason. we don't know. >> we are having a fight about today. your point is that if they videotaped them for history, and release them later, that would have its own value.

there the fear is that the reporters committee will never give up. they will want it today. not in 10 years or 15 years. >> i agree with you. the video would have tremendous historical value. the question is whether you could hide that. >> prop comedy in the united states congress has taken off. >> there is a hotel to block my law school that didn't take african-americans in 1965. they could have seen the oral argument, and it would have made so much more powerful, the fact that we can't do that is criminal. >> or bush v gore. or the health care case. you can listen to it. you can't see what ted olson's face looked like. >> in my misremembering.

the british supreme court in the u.k. had the cameras trained not on the justices but on the advocates. the idea is that they want students to be able to learn oral advocacy. there are some hybrids were -- bruce doesn't want that. at least you can say there is this education purpose. there is somewhat historic purpose being met. students can learn and watch and still protect judicial privacy. there is something in the middle. >> even if you're against cameras, and i can't fathom that. how can you be against cameras at the decision announcements? millions of americans would've had a citizens' moment of unbelievable historical and present-day significance. what possible downside could there be to hearing justice

kennedy announce this historic decision? how could there possibly be a downside to that? >> i think one of the arguments would be that the opinion announcements are not the opinions. they are not signed off by all the justices the offering justice right. i agree with you. i think it should be there. >> here is another question. i'm trying to get through as many as i can. does true transparency require that justices records must be available online? isn't it too limiting to have access to some dusty boxes in a library somewhere? >> the answer that is yes. when i try to figure out where justices papers were, you saw how few of these archival materials are available online.

a very small percentage. the rest are available, you have to go to a research institution somewhere. >> that is a money issue. lee epstein has gone and had in turn photocopy digitize with a digital camera on a tripod and took pictures of the memos that clerks to the justices who produce pate in deciding whether to grant the petition or not. she had someone take pictures of every page. they are on her website somewhere. the library of congress did not do that for us. but now they are there. it is a great resource. >> 50 years from now the supreme court justices working with papers will be absurd. who would look at a keyboard as the first method of creating

tasks? >> saying that i'm not so sure about the quote on page seven. what if we said blah, that is going to be lost to history. they may save the paper drafts. that is one reason to be glad that they still use paper and messengers and photocopiers. that will be saved. >> on the other side, yes and no. the digital records are much easier to preserve. >> i'm not saying they should preserve them. the fact that they don't, there'll be something left for history. >> nobody's arguing we have a right to the discussions between justices and their law clerks. i don't think anybody is. >> 100 years later, perhaps. >> i think we have time for this

last question. a few questions i didn't get to. i apologize. what if any problems have high courts in other countries or state courts, what problem or unintended consequences have other courts had after allowing cameras in the court? this is the question. >> the supreme court justice in ohio is a getting a whirlwind tour. her answer is i'm proud about this. i have canvassed other judges. nothing that has come out. they can't find any evidence of any harm. >> name a case decided by the supreme court of ohio. [laughter] name one. >> why does that matter? >> the amount of attention. yes they are all broadcast pretty none of attention is not comparable. it is not comparable situation. >> if we were in ohio.

>> do you really believe it is going to affect behavior of judges or lawyers. >> have you ever between oral argument in which a state attorney general takes the electorate and argues for the state? it happens today. >> you're going to be careful what you say in front of the supreme court. i don't know the cameras are going to make a difference. >> it is too late. it is a public hearing. some people get to go in. we are done. any other institution of government would have to televise. >> it follows the exact same

pattern, skepticism and concern at the beginning until acceptance, and then enthusiasm. it follows the same archetypal get used to it. iowa had cameras in their court for more than 30 years. their chief justice has come around and said no problem. it has been great. we put them online. people have access to it. as far as this dear of the unbound, what other way can we casted out other than these similar cases? other than running an experiment, that is our best guess. the evidence is extremely in favor of it. >> it can't be the case that only unimportant things, only ohio. that was the court's argument when they decided to pull the tv cameras out of the prop 8. when the district court was ready to roll. when the court issued, that this is too important.

people care too much to have cameras. what is that argument? unimportant things to be televise? >> that decision had a substantive effect. they would have seen ted olson destroyed any plausible public-policy argument against same-sex marriage other than religious. that would've had a greater effect. that procedural decision was hugely important. >> it is interesting when judge walker handed down his decision in that case, this is true of the ninth circuit, everybody got an e-mail. here is the decision. everyone opens up. the supreme court, they put their robes on and take the bench, they go up there and read a summary of their opinion because that is an exercise in transparency. it'll have to do that.

-- they don't have to do that. no other court does that. i understand that you think they ought to televise that. because it would be meaningful and historically significant to hear it. it is important to remember that that is something the supreme court does. lots of other courts don't do it. if congress decided to pull their funding, they might say they won't do that anymore. >> let's stop us there. it is time. you guys should write articles about this. but, i really want to thank gabe ross and his team for putting this together. i want to thank nyu. eric siegel, and willie jay, and all of you for being here. this is a terrifically important issue. this is been one of the best panels on the issue i've ever seen. >> i agree. [applause]

start up company that takes free television signals and charges subscribers a small fee to watch programs on computers and mobile devices. in the case of american broadcasting company versus the court will decide. this argument is an hour. >> mr. chief justice and may it please the court.

it can make that all that happen without -- to the internet and the thousands of antennas are new the basic service they are providing is not different than the cable -provided service. >> everybody's been arguing this case as if for sure they are not, but in looking at the definition of a cable company, a facility locateed in any state. they have whatever they have, a warehouse or building in brooklyn that receives signals or programs broadcast by television broadcast stations they are taking the signals. >> our signals. >> i'm sorry. they are. >> submits secondary

transmissions by wires, cables or other communication channels. it seems to me that a little ntenna with a dime fits that definition, i say why aren't they a cable company? >> well, first of all, if you're already at that point you've cheds that like the cable company they are publicly performing and maybe they qualify as a cable company and maybe they can comply with a -- >> but this gets it mixed up. do we have to go to all those other questions if we find they are a cable company. if we say they are a cable company they get a compulsory license. >> well the reason we haven't been debating as to whether or

not they are a cable company. they are not a cable company and don't want to be and i think that's because it might get you a compulsory license but brings a license with a lot of things. >> but that is not the question whether or not they want to be. the question is are they? >> here's why if i could i think and mr. frederich would certainly speak it to but i think the rven they dweent to be a cable exeanch is because i think the basic business model would not allow them to qualify for a compulsory business model. know ould still like to why aren't they a cable company? >> a phonograph used to be

called a phonograph record store that sells 10,000 giving a public performance. it seems to fall within that definition. if it is, there's no for sale doctrine and it's a big problem, so we could avoid that problem. now, 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 the question but it's not the question before you, so maybe i could give you some comfort as to why. >> well, my reason for wanting to decide it is what i said. what you've said and they are supporting that they have thrown occupy series of serious problems not involving them, like the cloud which the government tells us to ignore and many others which have make me nervous about taking your preferred route. so that's why i was interested

in this question. >> but i think it was fortunate understand that even they were not a cable company, these problems would not go away. i don't think they would qualify for the compulsory license and their way to avoid concerns is to take them on concerns. the reason the record company is not involved in the public performance is because they are not involved in a performance. they are different than a download company, because they download it and stream it live. it is also recognized in the real world by the way these different services are provided. if you download a service you provide that if you provide streaming where you also have a live performance streamed then you get a live streaming

license. >> the troubles about the phenomenon graph store and the drop box and the eye cloud. i'm also worried about how the find or public performance or the performance of a work publicly which i guess is the better way to do it according to you. how i do define that so that someone who sells coaxal cable to a resident of a building is not swept up as a participant in this. or someone who sort of passively storage advisors. this is really hard for me. what do i do to avoid -- not me but what does the court do to avoid a definition or acceptance of a definition that might make those people liable.

>> those are actually two different examples and i think the answer to both of those is somewhat different. the provider of coaxal cable which if it is just the simple sale of cable then it is a piece of hardware that you sell to the user. e user may use it for that purpose but maybe not. >> before you get to justice society mire's second half of the question, but somewhere along the lines of providing hardware. supposed a company just gave the antenna and hard drive, what the company sold to the user. then the customer was able to cable. e things to get

>> i don't think the person who sold them hardware would be involved in a performance. the answer to these hypotheticals, it's not something i'm making up on the fly is in the statue chute. >> of if airio has the hardware in its house as opposed to selling it to the particular end user, that's going to make all the difference in the world as to whether or not we have a public performance or not a public performance? >> yes. not because we like one better than the other. one way you can public perform, the singer at a concert hall. they soldal tickets but they say it's also a public performance if you take the performance and transmit it to

the public. and the definition of transmission then is to communicate it from one place to another. there's a geographical question. if you are transmitting it to yourself then it's not -- >> so in my hypo it's a performance but a private performance. if you move the hardware it becomes a public performance? >> on behalf of the sender but still a private performance on the behalf of the receiver. as to the public performance right there's nothing anomalous. -- if you think about the classic cable context which is

what congress is trying to address, tough cable company and they are taking a performance off the airwaves and transmitting it to all the end users. the cable company is clearly performing to the public but they are allowing each user to turn on their television set. -- is paying 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 if they are paying a license or not. if there was really a transmitter or no one was operating inform friday's performance. in the e eye drop cloud. >> i think the ultimate in utory difference

distinguishing the icloud in er from the aerio locker a service that provides a locker, a storage service. if you want a real-world analogy, the difference between a car dealer and valet parking service. if you look at it from 360,000 feet you might think that car is going to show occupy without a dealership, i'm not going to be able to get a car. if i show up and i don't have a car, it's not going to end well for me. it's like there's a very real situation in which you would say car dealership is provideling a service to the public but valet service is not. >> why isn't if you could park

your car in your own garage or a public garage. you can go to radio shack and buy an antenna or rent those if a criticalties somewhere else. >> mr. chief justice, that's not. >> an implausible way to look at this? that's exactly the way congress looked at it but in 1996 they decided if you are providing a service, even if you're providing a service that wanted to reconceptualize renting out antennas. the person who provides that ervice in an ongoing copyright that is clearly what they were trying to do in the 1996 act by adding the clause. >> so maybe you could explain to me what is the difference in the interview between what

airio does and a remote storage d.v.r. system. the way ave to do with that they acquire the program or does it have to do with the number of people who viewed this program that's been recorded? what's the difference? >> i think the difference in both the cloud locker storage and this example they can both divided today. >> well, i don't find that very satisfying. because i need to know how far the rational you want us to sent will go. >> ied that same question. assume cable television is our precedent. assume it. how would you distinguish the cable vision from your case? assuming that it's binding.

>> but justice kennedy i would like to address it -- i think the reasoning behind cable television is wrong but the reason there's a fundamental ifference between the d.v.r. television and airio, the fact that there's a license in the cable vision context to get the initial performance to the public. then i think appropriately the focus in the cable vision context becomes just the playback feature and just the time shifting that's enabled in that. d.v.r. ocus on it the focuses just on the locker content. i think airio is like cable vision having one in the second circuit decide whew, we won. so going forward we're going to dis bens all these licenses and we're going to say we're just a

d.v.r. so never mind that we have the right to get it in the first instance but because they are going to get the end service because they push buttons not us. >> i'm hearing everybody having the same problem, and i'll be absolutely prepared for argument's stick that if there were anything that should be hold the fall within the public performance, this should be. all right. i'll assume that. i'm not saying it is. but then the problem is that in the words doing that 2007 right words. are we somehow catching other things that really will change life and shouldn't such as the cloud. and you said, well, as the government says, don't worry, because that isn't a public performance. and then i read the definition,

and i don't see how to get out of it. >> there's a way to get out of it. the words you have to sbretcht are through the public. you see, separate, at the same time, or at different times? separate or together. 1,000 people store in the cloud as can easily happen and call it back at varying times of the day. if all they can do just like the valet parking services. i think what you put up there you could easily say that's not to the public. that's the distinction that's really been drawn in the real world. because there are some cloud computing services use that do yet? new con don't people who don't have licenses and others have a locker capability and don't think they need licenses. >> but what if it's not so

simple as a company that just allows you, yourself, to put something up there. there are lots of companies where many thousands or millions of people put things up there and then they share them. the company share gates. does that zphoun > that is precisely why i am asking that you not decide the cloud computing service. if the valet parking services starts renting them out and say while we have your car and someone else needs a car we will rent it out to them. >> i would like to reserve the rest of my time. >> thank you, counsel. >> mr. chief justice and may it

please the court. i would like to re-even force the point mr. clement made. what they are doing really what congress in the 1976 act wanted to define as a public performance. as the chief justice said is one way of looking at sit airio ando like services are not providing services. they are providing equipment what the viewer himself can do. it's a plausible way of looking at the world. decided the congress to override that. antenna eemed a an used to pull down the television are providing and should be paying royalties. >> the second is there's no reason it should include cloud

locker services altogether. >> how about simple tv or nimble tv? which is not quite a hybrid? >> i'm not familiar enough with the precise details of the operation but let me say in general they are obviously services that provide television programming over the internet and some of them are licensed because they realize they are publicly performing. if a particular company recorded television pranlsd offered to stream them to anyone who paid the fee or offered to stream them for free, that would be a public performance, because those companies would be providing content to people who didn't have it. i think the basic distinction or one that combines them to extremes that the company whether it be internet-based that provides content in the first instance and consumers

with content already available. someone has bought a detroit copy of a song or some other source and stores it in a locker and asks that it be streamed back then the cloud locker storage is not providing the content just a mechanism for watching it. >> but how about if there's a company that allows sharing, and that aggregates all the contents that different individual users put up and that in some sense sort of sorts and classifies the content inform different ways? how about that? >> i think you have to note the details of the service and have to be habling making a harder call about how to draw the line. i don't pretend there's 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 roof top antenna on his own home, everybody agrees that the roof top antenna

manufacturer is not performing at off. at the other extreme is the somewhere, you could come up with a lot of different hypotheticals that look somewhere in between, it's not a hard call as to where to draw the line, so i don't have a good answer for you. >> how do you get out of the example? of the -- what words do i write to get out of this throwing into this clause a music store that streams records via federal express or the u.s. postal service or even someone over the counter distributing to 10,000 people a copy of a record which they then will take and play it? hey have the same degree

transmitted something that electronically will make a performance of the music. when they sell the record violating the display clause? >> no. >> because? >> because the definition of "to transmit" goes on the transmitter or performance by isplay is to answer by images. >> the sounds are received. beyond the plays. it requires the person to take the record, put it on a machine and then play it. but there is a separate scomplufe right in the copyright, and this separate exclusive right has a clauds for which said doctrine is attached. if this covers it, there is no for sale doctrine, and that has a lot of consequences. >> anyway.

if you don't know and you have not gotten something right there and have covered it, you're not going to think about it in two minutes, nor will i. >> no. i have thought about it. , you e -- you are sense would say someone who sells c.d.'s or vinyl albums over the mail is is selling them. in this case they are talking about transmitting it in a way that causes the sights and sounds to be received through radio waves or transmission and remember it's part of the definition of the word perform and the ambiguity should be defined and nobody would say in ordinary parlance that the context of playing a record means performing it. -- mr. plement,

the t compared international obligations, that is airio's view of the public performance rights is incompatible with our obligations from him very -- he says that airio's view of what the public performance right is runs straight up against our international obligations and starts from the european court of justice, and i think in that case -- >> we have not made that argument. we believe that existing copyright law is fully

construed to be in our obligations. that doesn't mean the we think that whenever a court miscon construes are statute that, that we will be thrown into briefs. but if this case were decided that some of our international partners would object but we cannot concede that those os had married. > the other point to reinforce . cle meant's example of valet parking, there's situations all the time in which people place property momentarily at the disposal of another and then retrieve it later. and it's distributed to them that the later date not as capacities of the members of the public but as the true owners of the property. and i think somewhere the distinction of the two lines is

mundane far person by the copyright act. if i invite 10 people over the watch the super bowl, that's a private performance. not because my friends are not members of the public, but they are in another capacity. if the theater down the street of casablanca and only 10 people attended, it's still a public performance. so in a wide range of situations dealing with public performance and distribution to the public it's essential to ask not only are these individuals members of the public in some sense but are they acting in their capacity as such and if you have a pure cloud locker service that is a that was simply stores the content then plays it back at the user's request, that the ce will be providing

cable when anyone? let's assume that. >> my answer would be the same as mr. clement, if you adhere to the idea that the only nasms counts is the individual transmission and asks does that go to more than one person? then it's hard to see how you could rule in favor of our position here. but as far as the outcome of cable vision is concerned, you could say cable vision was decided the correct way, because precisely because cable vision had a license to perform in real time to broadcast the froom its subscribers, and the only thing that was an issue was the supplemental d.v.r. service and it held that the recording of those programs by the subscribers who were already entight told view them

the first time, and the playback can be characterized as a private performance of taxpayer own content. > thank you, mr. stuart. >> mr. bennett, may it please the court i want to address the cable question but three points i wanted to make are texas clear for area yo. the text they offer absolutely threaten cloud computing and this case is really a reproduction right case masquerading as a public performance service. we're not a cable service because cable takes all service and pushes them down. there's a very particular tructure that deals with dd

nothing happens with aereo until the user initiates the system. until they signal this is program i want to watch. that tunes the antenna and the user is then able to play back the recording. >> i always thought, and i will try to be careful about it. photograph of a record and duplicate it a million times like you're doing it and then go out and sell each of those copies to the pub rick that i am violating the act. so why is it that you're snot >> because it's not logical to me that you could make these millions of copies and

essentially sell them to the public, because you're telling the public when they buy it they can call it up and hear it. >> your suggestion imply indicates the reproduction right at the exclusive right to restrict the number of copies that is made. -- to the a public 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 after they to do are moving the equipment to the nternet.

>> when tim wrote there's no reason to use these multiple ntennas. the only reason for that was to avoid the copyright act. instead of having one beam antenna to have all these dime-sized antennas? >> this is a very complex question, justice ginsberg, and let me answer that on multiple levels. there's the same reason why it provides same-use lower quality. but they are -- there are very practical reasons too. it is to entice useers to do hat they can do at home.

efficiency is not a consideration under the copyright act. you cannot do multiple channels over the internet anyway. you can only do a single video stream at a time. so whether you have one antenna or lots of little ones, you still have to compress the signal and only one can go over the internet at the time. justice ginsberg, there's a very real reason as to why ultiple antennas make sense. if you want to put an antenna many, you have to get a license and then have to get a license. >> is there any reason you need 10,000 of them? if you model this correct, can't you just put your antenna up? there's no reason to have 10,000 dime-sized antenna other

than to get around the opyright or number of antennas, it targets whether the person receiving the signal coming through the internet privately performing by initiating the act of that antenna. getting the data stream and row in a user-specific user-initiated copy. >> that may very well be but doesn't contradict the justice's question, by doing it his way it doesn't violate that. >> there is a reason, justice scalia. you can replicate the experience at very small cost. urp you have the right to put an antenna and d.v.r. on your roof and in your living room

and we can reduce that by a fraction of the cost. >> but you give them space available when they call in. they don't have this is my little dime thing and my copy that's going to be here. they are there, and when they want something tough service. they don't have a den indicated antenna in brooklyn. >> some do. but that doesn't answer the question. the statutory question as in cable vision there's a user-specific user -- that is a private performance. at system works the same way vision act that cable d aereo chooses to do it

without the that? >> that would probably violate the fact that would matter

in your hypothetical would whether or not to advertiser- would have been done by the consumer or by the cloud. >> the consumer makes the choice. push button one or button two. i don't understand why it is a performer in one case and not he other case.

>> because the action of who is a performer turns under the statute on who is making who is acting to make the sequence of sounds and images perceivable. where you're talking about taking out advertising, what you're doing is you're altering the copy, and you are abridging, infringing, the reproduction right. that is not something that 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 the user-initiated, user-specific copy. >> mr. frederick, your client is just using this for local signals -- >> yes. >> right now. but if we approve that, is there any reason it couldn't be used for distant signals as well? >> possibly. >> possibly what? there is possibly a reason, or it could possibly be used? >> it can't be used for distance, but it implicates -- >> what would the difference be. i mean, you could take hbo, right? you could --you could carry that without performing. >> no, because hbo is not done over the airwaves. it's done through a private service. but justice scalia, let me answer your distant signal hypothetical this way. that would implicate again the reproduction right. t does not implicate the

private performance and public performance distinction, because, even if you were to take distant signals and make them available in the home, it's still through a user-initiated, user-specific copy of distant programming. the question then 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 broadcasts, it said that consumers have a fair use right to make a copy of that. sony did not address the distant signal, and the question then would become in balancing the fair use factors whether it was appropriate for a consumer to be able to get access to that programming without being able to otherwise implicate the free public spectrum. now, the way congress has addressed that, congress has addressed that by saying that when there are distance 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. so when they talk about how congress supposedly overruled fortnightly, what they ignore s that in section 11(d) and in 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. and so when they talk about the retransmission issue, they're really trying to conflate a totally different regulatory system -- >> mr. frederick, would you clarify? if every other transmitter does pay a royalty maybe it's under 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 radio shack doesn't pay copyright royalties either. and a company that provides a rental service for me to put an antenna in my home and install it, they don't pay copyright royalties either. and the question that it really boils down in this case is how significant should it be how long the cord is between the antenna and the dvr being -- >> the answer is very significant. and the reason it's 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 sounds so much like what a catv system does or what a satellite system does that it looks as if somehow you are escaping a constraint that's imposed upon them. that's what disturbs 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 to all kinds of other technologies. i've 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 me address i think i let me try to make it their problem. >> i think i've 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 the service. now, with respect to the second aspect of this, the reason why their interpretation of the transmit clause causes so much problem, so many problems for the cloud computing industry, is that 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 through 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. and that's why the cloud computing industry is freaked out about this case because they've 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's wrong with the statute is they aggregate

performances. instead of where the statute says "transmit a performance," they say "transmit performances." because they acknowledge that the way 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 i've got there's no reason it's a user-specific copy, is it? they're making 10,000 copies. it'd be much easier for you if you'd just have to make one copy and everybody could get a copy. >> well, that's 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 missed 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 at home watching on a dvr, the same principle. and 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 is the key distinction between video on demand and the service that aereo provides, the kinds of equipment and technology that aereo provides. we don't have a brief to defend the master copy because in the master copy situation, that 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 -- >> that's just saying your copy is different from my copy. >> correct. >> but that's the reason we call them copies, because they're the same. >> all i'm trying to get at, and i'm not saying it's outcome determinative or necessarily bad, i'm just saying your

technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. i mean, that's you know, lawyers do that. but i'm just wondering why -- >> whether you can give me any technological reason, apart from compliance with a particular legal issue, for your technological mind. >> it is much simpler if you're a startup to add components, to add modules when you're starting up, ramping up. and what we're talking about in any cloud computing industry is 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 with aereo's antennas and its dvr's, 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 dvr's and it's a very compact, small space.

and 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 the 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 add additional servers, add additional hard disk space and then when new consumers activate -- and let me just be clear about this, when they sign up, their system is completely empty. there's no content being provided. there's equipment that's being provided. so when they activate the system and they say, i want to watch the news at 6:00, they then start the process that then fills 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 their reply brief over and over that we're somehow a content provider would mean that everybody who provides an

antenna or a dvr is somehow a content provider. and if 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 whenever they are handling content. now, the government says -- >> they give the subscriber a menu, and it says you can get any of these things. it's not as though the subscriber initiates it. you have these choices and they're providing you these choices and those choices are content. >> it's no different, justice ginsburg, than if i'm at home and i have an antenna or rabbit ears on my tv and i know what channels i can get. >> but, mr. frederick, it's also it's also no different from a user's perspective, it's 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 you with a menu, and then you pick off that menu. >> right. but the menu, justice kagan and justice ginsburg, it is simply what is technologically available. there are broadcast signals that are available in a local area, and they are limited because that's what the broadcasters make available. and simply providing a user guide that says you can tune to this channel or you can 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 -- merely facilitating the use of your equipment. >> would you would you explain in a sentence or two, which will sound as if i'm bickering 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. vast amounts of music. and now they then send it down, perhaps to a million people at a time, who all want to hear the same song. now, what you said was, if i understood it, but explain it

if it is, that there is a provision of the copyright law that says when that happens, it's subject to a compulsory license. and if it's subject to a compulsory license, then, of course, people can get it and it's paid for by somebody. but if we side with them, there'd be a different provision that would come into play, namely, the performance, and it wouldn't be subject to the compulsory license. there's no point telling me i'm right if i'm wrong. what i want to know is, have i got your argument correctly? and if not, what is it? >> i think that your argument, justice breyer -- >> it's not my argument. it's a parody. an indirect version of your argument. >> let me -- ok. let me try to correct this. there is no compulsory license with respect to music or video. there are different compulsory licenses with respect to satellite and cable that capture all signals and push them down to everyone. >> all right. so that would be the same and it isn't going to be a problem. >> no. where it's going to be a problem with the cloud is 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 are engaging and 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, then -- >> but it should work out in a parallel way. that is, when i look at the program, i am making a copy of the program and, therefore, i'm violating the nonexclusive right the exclusive right to copy. now, if that's fair use and therefore, i can do it, it should also be fair use if exactly the same thing happens but it comes from a cloud. >> but let me further answer your question about music, because i omitted a key distinction, which is that for local radio broadcasts, there is a music distribution license. it's under section 115 of the copyright act. >> 115(c)(3). >> right. but that's the whole that is exactly the same way satellite and cable work, as well.

so that if you're broadcasting in the local area, it is for free. it is like a copyright-free zone. and 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 did was it 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 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. >> yeah. the difference is that they do not exclude anyone. and the difference -- the public-private distinction from private 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, those other services, they're not excluding anyone. as a user of those services, i have no right to exclude anyone else. and 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. >> but you are feeding subscribers, legions of subscribers. so i don't understand that. you say they have to -- are you selective, in that some people who want to use your service are going to be turned down? you're not. you will take anybody who can pay, right. >> sure. and if we went around to a 1,000 or 10,000 homes in brooklyn and we put up antennas, installed their dvr's for them, and we sent them a monthly bill every month to pay us because we had performed that service and provided that

equipment, it would be the exact same position, justice ginsburg. and that can't be a copyright violation. now, the only distinction the government has offered for why cablevision decision in the second circuit, and this goes to your question, justice kennedy, somehow should be different here, is in the supposed lawfulness of the first instance in which that content is received. that distinction can't work and would imperil the cloud. here is why. when a person is accessing local over-the-air broadcast television, it is doing so because that is pre-public spectrum. and 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. so it can't be the distinction between our situation and cablevision that 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's exactly the analogy that would be appropriate there. now, how would that affect the cloud? well, if you turn every type of performance that an individual makes from some content that gets downloaded or transferred from the cloud, the cloud provider can't tell what is legal or what is not legal. some stuff could be up there pirated. some stuff could be up there perfectly licensed. and what the position of the other side in this case is, 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 an interpretation of what is the public performance right, you are consigning them to potentially ruinous liability. >> mr. frederick, why isn't it sufficient to create a line such as the one mr. clement said, which said, you know, do you on the one hand supply or provide the content, that puts you in one box, on the other hand, if you are not supplying or providing the content, if

the user is supplying and providing the content, and you are just providing the space, a kind of platform for them to do that and for them potentially to share the content, that puts you in another box? >> well, justice kagan, i note that my friend did not reference the words of the transmit clause at all when he offered that distinction. and that's 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 that was good for a policy reason, you would still have to explain why the hundreds of thousands of people that are subscribers to aereo's service don't have exactly the same fair use right to get over-the-air broadcast content that all of those people who are not aereo subscribers but they happen to have a home antenna and a dvr. those people have every bit as right to get that access. and the fact that they are doing it doesn't make their antenna or their antenna provider a content provider. as i said -- >> why do people pay for the aereo service if they can do

the same thing all by themselves? >> because if you don't have to buy a tv, a dvr and an antenna and a sling box, which might cost you thousands of dollars, you might pay $100 to rent it, or if you want to just look at programming selectively, you pay $8 a month, it's a rental service, justice ginsburg. that can't change the copyright analysis. and just because you rent equipment does not transform the person that is providing that equipment into a public performer, particularly when you are the one who initiates every set of signals that activates the programming and the 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 just have to correct a fundamental difference. mr. frederick says, as he did in his red brief, that if you only if you are a cable company

and you only retransmit locally, you don't have to pay a royalty. that is just wrong, as we point out in the reply brief. there is a minimum royalty that every cable company pays whether or not they transmit distance 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 then after that point, aereo is just a hapless bystander. and if you want insight into what actually happens behind the scenes, to use the phrase the district court used, look at pages 64a to 67a of the petition appendix. because judge nathan explains all of 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. also, this whole notion of what is volitional. maybe in the reproduction concept, in context, just pushing a button and 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 are going

to be lots of situations where the sender, usually the cable company or aereo, sends a transmission to the user, and the sender of that transmission, if it allows a contemporaneous performance, unlike the record company, they are a transmitter. >> mr. waxman, tell me the consequences of our decision today. >> your consequences -- >> do you put them out of business, or do they have to go and negotiate a license with every copyright holder? you are, in fact, telling me they are not a cable company, they are not a satellite company, so they can't go into those systems of payment. what happens then? >> the consequences really gets back to the chief justice's question, which is, if they actually provide something that is a net benefit technologically, there's no reason people won't license them content. but on the other hand, if all they have is a gimmick, then they probably will go out of business and nobody should cry a tear over that. >> once you take them out of the compulsory licensing system, they're going to have

to find copyright owners, who owns james agee's pictures? who owns something that was written by -- like a french silent film in 1915? i 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 other systems. >> it's not a problem that should worry you because, first of all, if they need a compulsory license, maybe congress can revisit it as it has in technologically specific ways for cable and satellite, but there is other ways to get content. they can approach hbo -- >> but the second circuit -- >> do you have some other rebuttal points? >> i did, your honor, and one of them really gets to this hbo point, which is they want to say that this whole case is about reproduction and there's no public performance going on at all. and to understand how crazy that is, with all due respect, if they approach hbo and say, we would like to carry your content and provide it as a premium service, they would be telling hbo, by the way, we

don't need a public performance license. all we need is a reproduction license because we don't involve ourselves in any public performance at all, and that's why at the end of the day their argument simply blinks reality. they provide thousands of paying strangers with public performances over the tv, but they don't publicly perform at all. it's like magic. thank you, your honors. >> thank you, counsel. the case is submitted. >> for over 35 years espn brings public affairs from washington droll you, putting you in the rooms at briefings and conferences and offering complete gavel to gavel coverage of the u.s. house all as a public service of private strifment we're espn. created by the cable tv industry 35 years ago and brought to you by your local cable or satellite provider. >> today on espn, washington

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