In the Supreme Court of the United States
It would be unfortunate to miss my opportunity to post about the MGM v. Grokster oral argument before the Court renders its decision tomorrow morning. So here we go, if a few months belatedly.
A lot of us decided to camp out at the end of March to see the oral argument in MGM v. Grokster. I went with Sarah Brown, whom I'd first met officially at the Eldred v. Ashcroft Supreme Court argument, and a number of people from an informal mailing list that I had set up to share information on how to attend the argument.
The weather was uncertain right until the end; we had watched weather forecasts all week, with rising and falling probabilities of rain. It rained most of the day before the argument, then stopped in the early evening. Weather forecasts gave us about a 40% of rain sometime during the night, but that rain never showed up.
One result of the rain stopping was that people came out to get in line far earlier than I had expected. The first people in line arrived while it was still raining (at 2:30p in the afternoon on Monday!), while over a dozen people headed straight for the Court as the rain died down later on.
Sarah and I had been planning to get in line some time between 9:00 p.m. and midnight, depending on the rain, and to try to sleep between tarps if it started raining again. But just as I was trying to round up people to go get some dinner, Sarah got a call from the Free Culture activist Nelson Pavlovsky, who reported that he was near the front of the line and that nearly twenty people were lined up already. We quickly headed over to the Court.
We arrived just behind the people from CDT, who were just behind some paid line-sitters (more on whom below), who were just behind a bevy of serious enthusiasts of the Betamax doctrine (some of whom worked for the respondents and some of whom were just excited about the case). Many of these people had already been in line for hours and had gotten rained on during the afternoon downpour.
I had brought some "Save Betamax" shirts from CEA. (This was a little inefficient because CEA shipped them to me in California, and then I brought them back to D.C. in checked luggage. Oh well. Thanks for the nice shirts, CEA.)
I had also been wearing my "Save Betamax" shirt a few nights before when I ate at Minako Organic Sushi (one of my very favorite restaurants). Judy, the head waitress at Minako, had asked me about it, and then told me that I could find some genuine Betamax tapes around the corner at a thrift store. (Cory Doctorow used to live right by that thrift store. If only he had known, he could have bought a couple of Betamax tapes to go with his player piano rolls. The Mission District seems to be a good source of Dead Media; I should also mention the analog filmstrips I bought at the Abandoned Planet for a talk I gave a few years ago about the DRM Dark Age.) So I had gone down to the store Judy pointed out, and managed to pick up a few dozen Betamax cassettes, which I had also carried out to D.C. in my checked luggage.
Once in line, I started passing out shirts and Betamax tapes to other people in line. I was a little sad that many of the people who ended up with them were line sitters with no personal interest in the case, but it turned out in the end to be a good thing that I'd brought them. I gradually started to wander up and down the line and chat with various people over the next few hours. My anxiety about the length of the line grew rapidly as it approached midnight; my friend Mako Hill was in his way from New York City by bus, and wouldn't arrive until after midnight. That would have been fine for Eldred, but it wasn't going to work for Grokster.
The line sitter situation worked well for Mako, as it turned out, although it gave him a bad feeling about the oral argument process. Many people in D.C. regularly pay professional (or not-so-professional) line sitters to wait in line for them, sometimes for six to twelve hours, in order to get a "public" seat at an oral argument or Congressional hearing. Lobbyists and lawyers make a routine out of this; their time may be billed at hundreds of dollars an hour, so they prefer to use someone else's time in line. As the Washington Post article about line sitters that Mako found reports, there are many people who do this waiting for a living, and many of them know each other from repeated encounters in particular committee hearing lines in the U.S. Capitol.
The level of experience and professionalism of the line sitters varies dramatically. Mako was able to get in because one first-time line sitter who hadn't realized how cold it was going to be wanted to give up and go home. As I put it, he was not very good at his job. In the nineteenth century, there was much cultural value placed on duty, constancy, and so on. There was much praise for those who stayed at their posts, for those who carried out their orders, for those who were steadfast and stalwart. The line sitter in question was not one of those. Mako bought him out, but was disappointed by the whole experience.
How much money do the line sitters make? I heard a lot of numbers thrown around, typically from $200 to $500. It's possible that some of the line sitters' agencies make $500 and that some of the line sitters make $200. A lot of this seemed to depend on the line sitters' experience and bargaining skill.
Katie Dean from Wired News showed up and interviewed some of us; you can see a picture of me holding up one of the Betamax tapes in her story. We ordered pizza (just like in the Eldred line); the pizza place got confused about whether we really wanted pizzas delivered to the sidewalk outside 1 First Street. As it turned out, they also mixed up my vegan order with some of the line sitters' pepperoni order, so that one of the pizzas was pepperoni with no cheese. The line sitters disliked the thought of eating that almost as much as I did, so somebody managed to call up and get the pizza place to come back with the line sitters' pizza. A lot of EFF lawyers (most of whom did not have to wait in the public line because they were members of the Supreme Court Bar and could wait in the shorter bar line around the side of the building) dropped by and chatted with everyone.
After a fair amount of chatting, I went to sleep under a tarp, in a little sea of tarps with Sarah and several of my EFF colleagues. (Sarah thought the whole thing with the tarps resembled a child's fort. If so, I said, it was clearly none other than the Supreme Fort of the United States.)
I only had about four hours of sleep, because I was awakened by the loud chatter of people in a parallel line (which I think was the bar members' line temporarily moved over next to the public line). This was really irritating; those people hadn't had to wait in line overnight, but they were waking up everyone else who had. No matter what I did, I couldn't manage to get back to sleep, and my earplugs had gone missing. (I later found them in a side pocket of my bag, right next to my inflatable pillow, which I had also done without during the night. Oops.)
So I got up, some time before 6:00 a.m., chatted with people, and, as I recall, snacked on a vegan subset of the breakfast food other people brought us. After about an hour of chatting, we discovered that a large number of line-sitters had only been paid to wait until a certain hour (perhaps 7:00), and whose who had not been relieved suddenly called it a night and dashed off. Considering that their clients (known as "worms", per Annalee's interviewing) had in some cases paid them $500 to hold these spots, I found it quite remarkable that the line sitters (or their clients) mostly did not actually deliver their places in line to those who had paid for them. Apparently, the terms of the line sitter contract are very clear that the client must arrive at the appointed time or lose the spot entirely. We did see a few line sitters relieved by actual clients: a couple of people associated with the respondents right in front of us, and a couple of people who worked for RIAA right behind us.
Sarah and I found an opportune moment to leave the line, sprint back to the hotel, and get changed. (I was very grateful for my Dance Dance Revolution practice, which gave me some actual sprinting ability, something I hadn't enjoyed in a long time.) It was an interesting sprint that took us past several of the Library of Congress buildings, but we didn't take any time to look at them. We returned to the line looking a long sharper and feeling what turned out to be unwarranted anxiety about our places in line.
The crucial moment of the line came when the Supreme Court Police passed out numbers to everyone in line. If you weren't there to get a number, you weren't going to get into the argument. I've forgotten my number, but I believe it was in the teens, putting me a lot farther back than I had been at Eldred (where I was number 6). My Grokster line position was not close enough to the front to have a direct view of the Supreme Court's plaza, which was a real disappointment but no practical inconvenience.
After handing out the numbers, the Supreme Court police moved us up onto the plaza to wait in yet another line. Here people continued eating, taking photographs, chatting, pointing at various famous people, and so on. Someone associated with the respondents brought some donuts and started passing them out to everyone, prompting some quips about how respondents recognize the virtue of sharing. We were amazed to see that a pair of demonstrations started to form on the street just below the plaza: one demonstration for the petitioners (a bunch of musicians or songwriters from out of town) and one for the respondents (rumor had it that they were CEA people).
In the midst of our photography, donut-eating, coffee-drinking, and the like, the most remarkable thing of our more than twelve hours in line took place. I had been showing off some of the Betamax tapes to other people in line, who were getting photographed with them, when suddenly someone caught sight of Jack Valenti walking by.
Jack Valenti, retired president of MPAA, has a deep and famous association with the Betamax on account of his eight-year struggle to ban it -- starting before I was born. Valenti, a colorful and brilliant speaker, compared the Betamax to various forms of natural disaster and criminality -- including, most famously, to the Boston Strangler.
I immediately remarked to Annalee that it would be a wonderful thing if we could get Jack Valenti to autograph one of the Betamax tapes. I was far too nervous to try such a thing, but fortunately Annalee (as you might imagine) had no qualms about it, and fairly grabbed me and the Betamax tape, said "come on!", and dashed off toward Valenti.
There is actually a movie of Annalee asking Jack Valenti to sign the Betamax tape, and Valenti agreeing. I can't find the original right now, but I'm sure it's preserved somewhere. It's a wonderful thing. You can't see me in the movie, but you can see all three of us in a picture Chris took. Valenti very graciously agreed -- with a chuckle -- to give his autograph on the tape, which may be the only Betamax tape he has ever signed.
We gave the signed Betamax tape to Fred von Lohmann as a gift to commemorate his work on the Grokster case.
Chris took a bunch of pictures, including people in the two lines, me holding the Betamax tape before we caught sight of Jack Valenti, and then Valenti's autograph on the tape.
Annalee wrote a Techsploitation column about the camp-out experience, including the story of Valenti autographing the tape. For me, the experience with Valenti was probably the high point of the entire trip, and I'm grateful to Annalee for her courage in actually asking for his autograph!
After between 10 and 20 hours of waiting -- some of them in the rain, for the most intrepid and dedicated courtgoers -- we were finally let into the Court, past the multiple security lines, and suffered the indignity of having several different classes of VIPs and special guests parade past us as we waiting in line inside. (This is, I think, another thing that annoyed Mako. There are hundreds of people who get to go in without lining up; most of these get to go in for ceremonial and honorary reasons that need have nothing to do with interest in the cases being argued.)
The security lines delayed us enough that we missed the ceremonial presentation of new U.S. Attorney General Alberto Gonzales to the Court. We did see hear some decisions read from the bench, and, if I remember correctly, some ceremonial admissions of lawyers to the Supreme Court bar (which means that they get to wait in the short line in the future if they want to come hear Court arguments -- and that they can, at least in principle, represent clients in those arguments).
You can read the transcript; if you weren't there but are interested enough to have read this far, I suspect you've already read it!
Despite the drama of the Supreme Court chamber, I enjoyed the Grokster argument in the Ninth Circuit Court of Appeals more than the argument in the Supreme Court. I recall a few things that I found noteworthy at the oral argument -- for example, several of the Justices expressing perplexity about the bifurcation of the Grokster case into two phases. This post is not offered in the hope of predicting the outcome of the case, and so I think I will write surprisingly little about the oral argument itself. It certainly felt remarkably brief after the hours of waiting and sleeping in line.
I don't know what having been there allows me to contribute beyond what you can see in the recorded transcript. It is true that transcripts are "flat" and that the other channels of information that we get in person let us say much more about people's attitudes and emotions. (I have my own little anxieties about individual words uttered by individual Justices; perhaps they would have made interesting trivia if I had written this up promptly after the argument. Now I think they are superfluous.)
But, amazingly quickly, things had moved on to Brand X. The issues in Brand X are very technical (in terms of their connection to legal doctrines), and I'm not really familiar with the doctrinal issues. The ushers rapidly reseated us to replace people who left the chamber at the end of the Grokster argument, moving me very close to the railing that marked the front of the public seating area. From there, I could see some security people standing in the aisles of the Court chamber. They looked like Secret Service (although I don't think they can have been Secret Service), standing with their arms behind their backs, staring and periodically rotating positions. I hadn't noticed them at the Eldred argument, and I don't know whether they were there or not.
From that distance, I could see the individual Justices' facial expressions during the Brand X argument. During the argument, Tom Goldstein, who argued for the respondents, cited to the just-decided Oneida case, which had been announced from the bench about an hour and half beforehand. That's right: he cited a case decided that morning in oral argument to the Justices who had just rendered it. The audacity of this caused Justice Scalia to smirk visibly. (I knew there was a reason I had gotten my new eyeglasses during March!)
When the Court recessed, we filed out of the Court and saw a huge throng of journalists continuing to interview Fred and the other counsel. They had been doing so for about an hour, and still formed one of the largest groups of journalists I've ever seen collected in one place. Some of us tried to offer some support to the pro-Grokster protestors, and then we wandered over to the Public Knowledge party and everything started to wind down. I can't remember anything else from that day; I stayed over in D.C. one more night and tried to visit the Library of Congress unsuccessfully before my flight in the morning.
It was certainly otherwise for the counsel involved more directly in the case, but I found the process of waiting in line the most memorable. I had conversations with some of the most dedicated young copyright activists in the United States, people who really were willing to travel hundreds and thousands of miles and sleep in the rain to see a momentarily deliberation on secondary copyright liability. Some of them are in law school, or about to be; some of them are in school for computer science, or about to be. We have some talented, dedicated people who are getting ready to keep things moving. "That which they have done but earnest / Of the things that they shall do."
I'm grateful to Sarah and to everyone from the Grokster list for having helped make this camp-out happen and for sharing the experience with me. And I'm grateful to Mr. Valenti for his autograph.
We are waiting for the decisions in Grokster and Brand X -- but principally Grokster -- to be handed down on Monday morning. Last week I dreamed about Grokster, the second time this month I've done so. When I went into the office and took an informal poll, I found out that three other people had also had dreams about Grokster that night. "What I say to you, then, I say to all: Watch!"
If you want to read the opinion Monday morning, you can find it here; if you just want to know as soon as possible how the case came out, you can watch SCOTUSblog, as everybody at EFF is going to be doing.
Fred has posted some notes ahead of the Court's decision.
