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Where Does Gorsuch Stand on Tech and the Law?

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By Casey C. Sullivan, Esq. on February 02, 2017 6:00 AM

President Trump is an avid Twitter user, but otherwise avoids technology. (The president doesn't own a personal computer and rarely sends email, according to reports.) Justice Scalia once wondered, during oral arguments, whether one could print off text messages and share them with their friends.

Now Trump has nominated Tenth Circuit Judge Neil Gorsuch to take Scalia's place. Where does Gorsuch stand on technology generally and how might he impact technology and the law if he makes it to the Supreme Court?

Gorsuch Probably Knows How to Use Email

Not to paint with a broad brush, but the tech ignorance sometimes demonstrated by the Supreme Court Justices (and now the president, too) can be partly attributed to their age. At 80 years old, we can forgive Justice Kennedy for not knowing what happens when two texts arrive simultaneously, or Justice Scalia for thinking that cell phones had printer ports. But understanding technology matters when judges and justices are faced with important tech cases.

Unfortunately, there hasn't been much written about Gorsuch's personal grasp of technology. We'll hazard a guess, though, that it's better than Scalia's. Just 49 years old, Gorsuch came of age during the rise of the modern technological era, meaning he's likely at least conversant in modern technology.

A Few Hints From a Few Cases

When it comes to the law, Gorsuch hasn't handled many high-profile tech cases. But he's made a few decisions with tech implications. One of those cases is Dudnikov v. Chalk & Vermilion Fine Arts. In the case involved personal jurisdiction in an online copyright dispute:

This case concerns two of plaintiffs' prints, both of which play on famous images by the artist Erté, Symphony in Black and Ebony on White. While Erté's images depict elegant women walking aquiline dogs, plaintiffs' prints portray Betty Boop next to her aptly named canine companion, Pudgy.

After the owners of the Erté originals halted the eBay auction of the prints, the sellers sought a declaratory judgement in a federal district court in Colorado. Gorsuch, writing for the majority, found that jurisdiction was appropriate, announcing a five-part test to determine that defendants had "purposefully directed" their activities to the forum and that the claimed injuries arose out of those contacts.

The case was not revolutionary, but it did make it easier for individuals to challenge frivolous take down notices and copyright claims in their home jurisdictions.

Another relevant Gorsuch opinion is Meshworks v. Toyota Motor Sales, involving the application of copyright law to digital modeling technology.

Emerging technologies often pose challenges for existing legal frameworks, Gorsuch noted, pointing to the rejection of copyright protection for photographs by many courts prior to the Supreme Court's 1884 Burrow-Giles decision. But the principals established in Burrow-Giles and onward don't mean that the digital models here were protected. "We think," Gorsuch wrote, "Meshwork's models are not so much independent creations as (very good) copies of Toyota's vehicles."

That does not mean, however, that 3D modeling itself faces a higher barrier than more established technologies, like photography. As Gorsuch wrote:

Digital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions. Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There's little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices. The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn't involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space. For this reason, we do not envision any 'chilling effect' on creative expression based on our holding today.

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