Judge Gorsuch on Copyright and Technology

I’ve done a quick pass through Judge Gorsuch’s opinions in the fields I know something about (mainly IP and Internet law) and I’m impressed by what I’ve found. His writing style is designed to make his conclusions sound reasonable and sensible, and in these cases at least, they are. A few highlights:

• U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). The defendant sent an email with an attachment that triggered AOL’s automated child-pornography filters. AOL forwarded the email to the National Center for Missing and Exploited Children (NCEMC), where an analyst opened the email and viewed the other attachments. This, the court held, triggered the Fourth Amendment: NCEMC was a governmental actor and it went beyond the scope of AOL’s search. I put a question based on this one in my Internet casebook; the opinion itself is quite good. It gets the technical details of digital searches right enough and it bats down several tempting but dangerous arguments that other courts have fallen for. The private-search doctrine, in particular, is a serious threat to digital privacy, and this is one of the best recent developments pushing back against it.

• U.S. v. Carloss, 818 F.3d 988 (10th Cir. 2016) (Gorsuch, J., dissenting). The police knocked on the defendant’s door even though he had posted numerous “No Trespassing” signs. The majority found no Fourth Amendment search because the police had an implied license to walk up to the front door to knock. Gorsuch’s dissenting opinion disagrees, concluding that the signs clearly revoked any such implied license. Both his parsing of the caselaw on implied licenses and the facts of the specific case are excellent. (It doesn’t hurt that his general approach is in keeping with my views on consent in computer-access cases.)

• Meshwerks v. Toyota Motor Sales USA, 528 F.3d 1258 (10th Cir. 2008). The court held that high-resolution digital wireframes of Toyotas are not copyrightable because “they depict nothing more than unadorned Toyota vehicles – the car as car.” I’ve assigned this one several times to my IP students, and I cite it with approval in my essay on 3D printing. The result and the reasoning are both, I think, quite correct. It’s the best modern opinion on the copyrightability of digital models of already-existing objects.

• Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008). The plaintiffs sold Erté/Betty Boop mashup prints on eBay. The defendant, which owned the Erté copyrights, sent eBay a takedown notice, and eBay took down the auctions. The plaintiffs turned around and sued for a declaratory judgment of non-infringement, which the defendant contested on personal jurisdiction grounds. The court here held that there was personal jurisdiction, which is both the right result for deterring overly aggressive machine-gun takedown notices, and also eminently justified by existing personal jurisdiction doctrine. Gorsuch’s opinion for the court strikes me as a bit of overkill, and it explores without deciding more issues and details than necessary, but some of that may have been justified by the need to reverse the district court’s opinion to the contrary.

I recognize that my fields are more obscure and less controversial than other fields in which Judge Gorsuch has written. Others will have more to contribute in discussing them. But technology law is important and getting more so, and it’s important to have a judiciary that understands the distinctive issues it raises and gets them right. Everything I’ve seen so far about Judge Gorsuch’s record in that respect is encouraging.