“Why isn’t what used to be called a phonograph record store that sells phonograph records to 10,000 customers a public performance?” asked Justice Stephen G. Breyer.
Later, Justice Sonia Sotomayor circled back to it. “Justice Breyer has already asked you, said he’s troubled about the phonograph store, and, and the Dropbox and the iCloud.”
I, too, am troubled about the phonograph store. I am troubled that this is the metaphor being used.
“I always thought,” Sotomayor mused later, “and I’ll try to be careful about it, but not often enough, probably breach it like every other member of the public, that if I take a phonograph of a record and duplicate it a million times the way you’re doing it, and I then go out and sell each of those copies to the public, then I am violating the Act. So why is it that you are not?”
PHONOGRAPHS ARE BACK AND BIGGER THAN EVER. Not just for hipsters, but in Supreme Court arguments about streaming. (Cue shudders.)
Look, I’m just glad they thought better of their follow-up questions.
My colleague Alyssa Rosenberg points out, sagely, that if they are uncertain whether what they are talking about resembles a phonograph, it is better that they ask now and clear that up before they start ruling all over it. And Brian Fung makes a good point that this kind of analogy is a good way of making sure your argument makes sense, on a fundamental level, but you still have to worry, a little bit, when someone talks about Internet Things in terms of Things That Were Big During the Cleveland Presidency.