In the Supreme Court of the United States

Eugene L. Whitman v. Alfred Vail Enterprises, Inc.

Oral Argument of Attorney Richard A. Tilghman

on Behalf of Petitioner Eugene L. Whitman

February 12, 2046

Chief Justice Diehr: We'll hear argument this morning in Case
45-405, Whitman versus Alfred Vail Enterprises.

Mr. Tilghman?

Mr. Tilghman: Madam Chief Justice, and may it please the
Court.

Today, we ask this Court to protect one of the oldest and most
important property rights established within this nation: the copyright
that protects the creative works of authors, artists, and — most relevant
to this case — musicians.

Section 106 of the Copyright Act guarantees to copyright
owners the exclusive right to make copies of their works, to make
derivative works based on the originals, and to distribute and
publicly perform those works, among other things. These rights
are —

Justice Diamond: Before we get too far into the copyright
weeds, Mr. Tilghman, can you explain to me why we should even be
considering this case? This is a case about erasing people's memories,
so I want to start out with why you think the National MemSweep
system is at all relevant outside the very narrow confines of terrorist
activity that we permitted in Neilson. I mean, we're talking about
suspending civil rights, about freedom of thought. Why should we even
be thinking about erasing people's memories anywhere outside the
context of terrorism?

Mr. Tilghman: Justice Diamond, though Neilson was itself a
case involving a terrorist act, its reasoning was not limited to
such situations. This Court's decision relied on general principles
of the Constitution, and it decided that erasure of memories
on a national scale was permissible when 'an unquestionable
interest of the American people is placed at imminent risk.'
The unquestionable interest in Neilson was the right to safety
from terrorism, but other important interests could fit the bill as
well.

Chief Justice Diehr: And, of course, there's the fact that an
illegal idea is contraband. You know, no one questions why it's illegal
to own illicit drugs, or weapons of mass destruction. An idea can be
just as destructive as either of those things. Doesn't it seem like the
government should have the power to confiscate dangerous ideas to
protect the people?

Mr. Tilghman: Indeed that's right, your Honor. Possession of
an illegal thought ought to be dealt with just like possession of an
illegal object. And an infringing copy of a copyrighted work is
contraband, as the Chief —

Justice Flook: Well — well — hmm. I can understand the
contraband argument as a general matter, but I'm worried about the
slippery slope. I concurred in Neilson but was concerned about what
overuse of National MemSweep could ultimately cause. Taken too far,
it could lead to censorship, government mind control, Nineteen
Eighty-Four totalitarianism. How can I be sure, Mr. Tilghman, that
what you are asking for in this case won't take us down that
path?

Mr. Tilghman: It's an excellent question, Justice Flook, but
luckily it has a straightforward answer. As I said previously, Neilson
held that an 'unquestionable interest of the American people'
could justify use of National MemSweep without triggering those
slippery slope concerns. And protection of copyright is that kind of
unquestionable interest, because copyright is a strong, absolute
right.

Chief Justice Diehr: Right, this is the argument from your
brief about Digital Rights Management.

Mr. Tilghman: That's correct.

DRM, of course, is the technology that ensures that copyrighted
works cannot be misused in ways that the copyright owners do not
want. That technology was once crude and rare, in the early days of
computer technology. In that world, perhaps I would have agreed with
you, Justice Flook: copyright was rarely enforced, and piracy was
rampant.

But the world shifted toward mobile devices around the turn of the
century, and those devices could be tracked, controlled, or even
disabled remotely. That opened the door to strong, effective DRM,
which was ultimately developed by an industry consortium and is now
included on every computer device sold today. That industry standard
DRM gives copyright owners total control over their works: power to
stop copying, power to control who views the work, power even to
delete data off of a device to protect against misuse. That is absolute
control.

Looking at it that way, what my client is asking for in this
case is not a particularly big step. He already has control over
every copy of his work stored in any electronic device. All he
wants now is control over copies of his work stored in people's
minds.

Justice Diamond: Wait — wait a second. You're completely
forgetting the rights on the other side. Don't consumers have rights to
make personal copies, or to play music among friends? There are all
sorts of things that are 'fair use' or otherwise allowed under
copyright law, as I recall. Making parodies, quoting for news
reporting, recording broadcasts to watch them later — these are all
considered fair use rights, and people are allowed to do them despite
copyright.

Mr. Tilghman: While it is true that those exceptions to
copyright still remain on the books, they have all been superseded by
the law surrounding DRM.

Justice Flook: So to be perfectly honest, Mr. Tilghman, I
didn't quite understand this argument in your brief. Section 1201 of the
Digital Millennium Copyright Act, which I'm assuming you're
talking about, that section says nothing about overriding fair use
and other exceptions that Justice Diamond mentioned. So how
do you reach the conclusion that Section 1201 supersedes such
things?

Mr. Tilghman: It's admittedly a tricky concept, your Honor,
and I apologize if I didn't explain it well in the briefs.

It is true that those exceptions to copyright, like fair use, still
remain on the books. But the applicability of those exceptions
is sharply limited by DRM and Section 1201. Modern DRM
ensures that protected works cannot be used in ways the author
does not desire, even if those uses might fall within one of those
exceptions. And Section 1201 made it illegal to get around the
DRM. So by operation of law and technology, it is illegal to
use a DRM-protected work outside of how the copyright holder
permits, regardless of any purported 'statutory exceptions' to
copyright.

Chief Justice Diehr: So, in other words, Congress made it
illegal to do whatever the DRM doesn't allow, even if the DRM is
blocking one of those copyright exceptions. And that means that
respecting the DRM is actually more important than those fair use
exceptions and such. Is that right?

Mr. Tilghman: Yes, that's exactly right. With Section 1201,
Congress decided that copyright owners' interests must come first,
when it comes to data on devices. No reason why data in minds should
be different.

Justice Diamond: That just seems absurd to me. This
law makes it illegal for people to exercise their rights like fair
use?

Mr. Tilghman: Perhaps it seems absurd to you that DRM
legally overrides fair use, but that has been long established as the law.
A case from 2001, Universal City Studios v. Corley, specifically said
that circumventing DRM was illegal under Section 1201, even if it was
done for fair use purposes. MDY Industries v. Blizzard Entertainment
from 2010 reached the same conclusion.

If these cases were wrong, then Congress has had four decades to
change the law. But there has been no such change. Section 1201
remains on the books just as it was enacted. This just goes to show
that copyright is a power of total control today. It is a very strong
right.

Justice Flook: So this is fascinating. I think I now understand
your argument for why copyright is a strong right. But let's step back a
minute.

This case is about erasing memories from citizens' minds. From all
the citizens' minds. Now I appreciate your argument that copyright is a
strong right, backed by DRM and laws like Section 1201. But I'm not
sure why I should make the jump from very strong right to this remedy
of memory erasure.

Obviously all this MemSweep law is very new, and we're still
figuring out how it works in all different areas of the law. But I want to
make sure this isn't like the power grabs I remember from the '20s and
'30s, when the big nuclear power companies tried to claim all sorts of
rights based on some pretty outlandish interpretations of environmental
laws. What legitimate need do copyright owners have for erasing
people's memories?

Mr. Tilghman: The legitimate need is the interest in total
control over one's copyrighted work. That interest in total control is
legitimized by the DRM and Section 1201 protections that enable such
control. Copyright law today gives owners total and complete power
over their protected property.

The power to control is the power to erase. Already modern DRM
systems allow copyright owners to delete infringements of those
copyrights from afar at the touch of a button. Physical copies of
infringements can be destroyed under Section 503(b) of the Copyright
Act. And ever since the U.S. International Trade Commission started
treating data transmissions the same as importation of goods in 2014,
it has been impounding and blocking Internet information on a
regular basis. There is no doubt that removal of information
from the public thought is a well-accepted remedy for copyright
infringement.

So why should it matter whether that information is removed from
a silicon drive or a human neuron? As Chief Justice Diehr explained
earlier, information that infringes copyright, like Mr. Vail's song
'Straight Focus,' is contraband wherever it might be stored. And
ultimately, all we ask for in this case is the modest proposal to apply
the same power over computer devices that DRM gives copyright
owners, to apply that power to human minds. If we can prevent tablets
from thinking infringing thoughts, why shouldn't we stop people from
using their heads to violate aptly-named intellectual property
rights?

The only reason that copyright infringements were allowed to
remain stored in people's minds is that we didn't have the technology
to remove illegal copies of memories. Today we have that technology.
So I urge the Court to take what is the next natural and reasonable
step in protecting copyright owners, to allow them to fully protect what
belongs to them.

Chief Justice Diehr: Thank you, Mr. Tilghman.

Ms. Proctor?

In the Supreme Court of the United States

Eugene L. Whitman v. Alfred Vail Enterprises, Inc.

Oral Argument of Attorney Willa M. Proctor

on Behalf of Respondent Alfred Vail Enterprises, Inc.

February 12, 2046

Ms. Proctor: Madam Chief Justice, and may it please the
Court.

For the almost three centuries that the United States of America
has been a nation, the inviolability of the mind has been a
central tenet. The pursuit of happiness — the pursuit of personal
thought — stands up there with life and liberty as an inalienable
right.

But that pursuit of happiness is fundamentally what is being
questioned in this Court today. For Petitioner seeks to violate the
fundamental right to freedom of thoughts, to maintenance of ideas, to
pursuit of happiness — he seeks to violate these in order to vindicate his
desire for protection of intellectual property.

Certainly freedom of thought is not absolute, as this Court
recognized in Neilson. But like freedom of speech, or the rights to due
process or equal protection, it is a fundamental right that may be
breached only when there is a compelling interest on the other side — an
interest like terrorism or national security.

Copyright is no such compelling interest. It does not put the
security or protection of the whole nation at stake; it is merely a
financial interest of a single person.

Chief Justice Diehr: Well, the interest of a single person can
certainly be compelling if that interest is strong enough, can it not?
The interest in protecting a person from violent crime, or a person's
fundamental right to equal protection under the law, those are certainly
compelling interests. And if, as Mr. Tilghman suggested, copyright is
such a strong, absolute right, why shouldn't it fall within that
same category of compelling interests deserving of the utmost
protection?

Ms. Proctor: Well that's just it, your Honor. Copyright is not
nearly as absolute as Mr. Tilghman would have us believe. The most
well-known exception to the absoluteness of copyright is the doctrine of
fair use, by which one may perform an act that looks just like
infringement of copyright, but bear no liability or responsibility for
infringement, because the performed act is deemed a fair and
acceptable use.

Chief Justice Diehr: Mr. Tilghman just argued that fair use
has basically been trumped by DRM and Section 1201. What's your
response to that?

Ms. Proctor: Maybe he's right as a practical matter, but the
annihilation of fair use is not something that this Court should
propagate or endorse. Doctrines like fair use are critical to the
continued ability of artists and creators to do their work. All art builds
upon the successes and inspirations of the past. Just as this Court cites
prior cases in writing new opinions, a novel will quote or allude
to older works; a painting will use the techniques of the great
masters; a musician will borrow ideas from various genres and
songs.

So even if DRM and Section 1201 have diminished the doctrine of
fair use on electronic devices, this Court should not further diminish it
by declaring copyright a totally absolute right. And that is why use of
National MemSweep simply cannot be appropriate. That system is
reserved for situations of absolutes: absolute rights for which there is no
redeeming value on the other side.

Justice Diamond: The numerous state laws regulating the
overall use of MemSweep technology, those laws would confirm your
view that National MemSweep must be reserved for uses of absolute
importance, right?

Ms. Proctor: They certainly would, your Honor. When
MemSweep was first made popular years ago, states immediately acted
to regulate the industry out of concern that the technology could be
abused. Today, every one of the fifty-two states has laws that license
MemSweep operators, restrict use of memory erasure operations to a
small set of appropriate situations, impose waiting periods on those
wishing to use it, require substantial verification of informed
consent —

Chief Justice Diehr: And all of those laws are inapplicable
here. As I'm sure you know, the National Security Act of 2040
preempted those state laws and allowed for National MemSweep to be
used 'to protect any national interest or right,' to quote the
language of the law. So enforcement of a right created by the
U.S. government — oh, say, copyright — is explicitly permitted
even in the face of those individual state laws you bring up,
right?

Ms. Proctor: Your Honor, the National Security Act was
enacted only five months after the August 2039 terrorist attacks, and it
seems obvious that the act was intended specifically to deal with
terrorism and national security. So maybe the text of the act
suggests that the act overrides all those protective state laws
when it comes to enforcing copyrights. But in the context of the
passage of the National Security Act, that's a real stretch of
interpretation.

Justice Flook: It seems to me, counsel, that what you're
pointing to is that larger problem of a slippery slope, which we
discussed with Mr. Tilghman. If copyright is not as strong an interest
as national security, then allowing the National MemSweep system to
be used for copyright enforcement might open the door to all sorts of
other unintended uses of the system.

Ms. Proctor: That's exactly my concern, your Honor. Abuses
of memory erasure — abuses of wholesale national memory erasure — are
easy to imagine. A political party in power could use it to weaken the
beliefs of the opposing party. Big companies could use it for corporate
sabotage. Erasing memories could become the tool of oppression, of
ostracism, of —

Chief Justice Diehr: Well it seems to me that there are plenty
of other situations where it would be appropriate to use the
system. What about leaks of classified information? Shouldn't the
government be able to use National MemSweep for preventing
leaks?

Ms. Proctor: Leaks of classified information are still issues of
national security, so they are essentially no different from prevention of
terrorism. So even if using National MemSweep to prevent those leaks
is appropriate, that says nothing about using National MemSweep for
copyright infringement.

Chief Justice Diehr: OK, in that case let's consider a copyright
example. Say that you have a situation like the old copyright case
Harper & Row v. Nation Enterprises, where a magazine gets its hands
on a book before publication, and 'scoops' the book by printing the
best parts in advance. That kills the market for the book and is
totally contrary to the exclusive right to control distribution of
one's work that copyright entails. The only true remedy for the
copyright owner is to erase memory of the scoop, so that the book
can be sold and read anew. Isn't that an appropriate use as
well?

Ms. Proctor: No, your Honor —

Justice Flook: Huh.

Ms. Proctor: I'm sorry?

Justice Flook: Well — hmm. It's interesting, that point that
Chief Justice Diehr raises. I knew of the Harper & Row case but
hadn't thought of it that way.

It reminds me of something that happened to me years ago, when I
was still a student in law school. I had been working on a research
project on local plastic shopping bag laws, back in 2012. I spent
months digging through municipal law records, calling up city
councils — even had to visit one town that still only kept the laws in
paper books.

Finally, I'd gotten all the data I needed, and was starting to write
my paper on it. And I knew that this was going to be a big one, at
least for a third-year law student with barely a law review note to his
name. But I mentioned the results to a professor of mine at
the time, and he repeated the main conclusion during a press
interview. That of course spread across all the news sites within
days.

I suppose I should have been happy that the facts were out there.
But when it came time to send out my paper for publication two
months later, of course no one was interested. The paper was
ultimately thrown out, along with the half a year I'd dedicated to
it.

Obviously I managed to produce other successful work —

Justice Diamond: I think you did pretty well for yourself,
Justice Flook.

(Laughter.)

Justice Flook: Well, being on the bench with you, it can't be all
bad.

(Laughter.)

But I suppose what I take from that incident is — well, having
control over your own work is pretty important. I lost control
over my research. But now technology can help with that. We
have DRM that gives copyright holders control over their work
on devices. Maybe that was controversial once, but everyone
accepts that today, considering that the Section 1201 law remains
unchanged. Why shouldn't we have control over our works in the
minds of others? That's all that Mr. Whitman is asking for,
right? A sort of do-over, to pluck out the mistaken, infringing
information that never should have been let loose in the first
place.

Chief Justice Diehr: Something like, maybe, cleaning the
environment of a pollutant? That would be analogous.

Justice Flook: Hmm — yes — maybe that's it. Maybe that's what
I was looking for when I was asking whether memory erasure
is the right remedy here. Like scrubbing the air of chemicals,
perhaps we're scrubbing minds of information that doesn't belong
there.

Ms. Proctor: I — I see that my time has expired, would —

Chief Justice Diehr: The Court will indulge you a minute or
two for a response.

Ms. Proctor: Thank you, your Honor. To answer your question,
Justice Flook, we're not just scrubbing minds of a small piece of
information. We're scrubbing a whole lot more.

When I talked to my client, Mr. Vail, about the importance of his
song, he explained that it was intimately tied to the memory of his
daughter, Sarah Vail. 'Straight Focus' is made up of her favorite songs,
he said, and so his memory of that song is his memory of her. The song
also uses the neurological techniques he invented, working as a carefully
orchestrated whole to trigger memories of Sarah in his mind. In a very
real sense, it is this song that keeps Mr. Vail's daughter alive. To take
away his memory of that song would be to take a piece of her away
from him.

This deplorable result is only writ larger for all the fans of the
song. Fans have enjoyed the piece and built their own memories
around it. Artists have built upon and improved the song with
their personal tastes and creativity through remixes and cover
versions.

Shall we give up all of this creation, all of this progress, all of this
thought and happiness, on the unilateral request of one songwriter?
The Constitution of the United States says that copyright law
must 'promote the progress of science and the useful arts.' But
the memory erasure that Mr. Whitman seeks would eliminate
not only the infringing song — which was a work of progress in
itself — but also all the progress made based upon it. Erasure
is regress, not progress, and this Court should not authorize
it.

Chief Justice Diehr: Thank you, Ms. Proctor. The case is
submitted.