I’m saddened to hear of the retirement of Justice John Paul Stevens. Whatever you might say about his jurisprudence in other areas, one place where Justice Stevens really shined was in his defense of high‐tech freedom.
Justice Stevens wrote the majority opinion in some of the most important high‐tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:
- Free speech: Justice Stevens wrote the majority decision in ACLU v. Reno, the decision that struck down the infamous Communications Decency Act and clearly established that the First Amendment applies to the Internet. In the 13 years since then, the courts have repeatedly beat back attacks on free speech online. For example, Justice Stevens was in the majority in ACLU v. Ashcroft, the 2004 decision that struck down another attempt to censor the Internet in the name of protecting children.
- Copyright: Justice Stevens wrote the majority opinion in the 1984 case of Sony v. Universal, the case in which the Supreme Court upheld the legality of the VCR by a 5 – 4 vote. The decision, which today is known as the “Betamax decision” after the Sony VCR brand, made possible the explosion of digital media innovation that followed. When the recording industry tried to stop the introduction of the MP3 player in 1997, the Ninth Circuit cited the Betamax precedent in holding that “space shifting” with your MP3 player is permitted under copyright’s fair use doctrine. The iPod as we know it today probably wouldn’t exist if Sony had lost the Betamax case. Justice Stevens also wrote an important dissent in the 2003 decision of Eldred v. Ashcroft, in which he (like the Cato Institute) argued that the Constitution’s “limited times” provision precluded Congress from retroactively extending copyright terms.
- Patents: The explosion of software patents is one of the biggest threats to innovation in the software industry, and Justice Stevens saw this threat coming almost three decades ago. Stevens wrote the majority decision in the 1978 case of Parker v. Flook, which clearly disallowed patents in the software industry. Three years later, Stevens dissented in the 1981 case of Diamond v. Diehr, which allowed a patent on a software‐controlled rubber‐curing machine. Although the majority decision didn’t explicitly permit patents on software, Stevens warned that the majority’s muddled decision would effectively open the door to software patents. And he has been proven right. In the three decades that followed, the patent‐friendly U.S. Court of Appeals for the Federal Circuit has effectively dismantled limits on software patents. And the result has been a disaster, with high‐tech firms being forced to spend large sums on litigation rather than innovation.
So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well‐deserved retirement.