Even Hollywood Publications Are Concerned That Aereo Decision Kills Innovation And Harms Consumers
from the time-for-Congress-to-fix-things dept
We've already noted how the Supreme Court's ruling in the Aereo case is a disaster for the technology industry, by using a bizarre "looks like a duck test" that provides no guidance for the tech industry and is going to create a litigation nightmare. Of course, the broadcasters and their supporters in the copyright maximalist world insist that this is all hyperbole and exaggeration -- but it appears that even many of their "friends" agree.The LA Times is Hollywood's hometown paper, and it frequently supports the industry. However after the ruling, it's released an editorial worrying about the impact on innovation:
There's been plenty of speculation that Aereo could undermine broadcasters by cutting into or even eliminating the substantial fees they collect from cable operators. But then, as Scalia noted, broadcasters said the VCR would be the death of their industry too. By trying to close a legal loophole that technology enabled Aereo to exploit, the court blurred the boundaries around copyrights in a way that will chill investment and innovation. It would have been far better if the court had let Congress respond to a technological change it couldn't have foreseen 38 years ago.Then jump over to the Hollywood Reporter, the leading trade magazine for Hollywood, and you get a similar analysis that notes the chill on innovation:
Innovators lose because the Aereo decision makes it harder for them to know where the lines are drawn. The court said Aereo – which allowed users to use RS-DVR technology to transmit programs, from a small antenna to a hard drive and thence via packet on the Internet to mobile devices and PCs – was "substantially similar" to a cable system that uses a single big antenna to transmit programs via cables buried in the streets to television sets. The fact that Aereo also resembled an RS-DVR was discarded. With that much elasticity, how does a technologist know whether her brilliant idea too closely resembles a phonograph or player piano roll and therefore runs afoul of some vastly pre-Internet analysis?That report also notes the harm done to the public:
Consumers lose for the same reason that MVPDs win. High priced cable bills are here to stay, and unbundling remains a distant dream for consumer advocates.The other big trade publication, Daily Variety, was much more congratulatory towards Hollywood's "victory," but its editor-in-chief penned an analysis piece that warns the networks who hid behind this fight that if they don't want another Aereo to pop up, they need to start innovating themselves.
In other words, pretty much everyone -- even Hollywood's closest observers -- recognize that this ruling was a disaster towards true innovation, and are hoping against hope that these companies that have spent decades fighting innovation will magically start innovating themselves, now that they wiped out the upstart competitors. I wouldn't hold my breath. The purpose of this fight was to kill innovation, and that's not going to spur the networks to innovate. They think they wiped out this threat.
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Filed Under: copyright, innovation, supreme court
Companies: aereo
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When they noticed that artists can use the innovations available online to skip past them and make more money.
While they won this battle, perhaps they finally got clued into that their fights are still actively declaring war on consumers who they are pushing into the open arms of new ideas they haven't been able to kill.
Perhaps they are starting to get a clue that they aren't the only game anymore and the fall is coming as the dinosaur opens its long sleeping eye and considers moving into the 19th century to catch up.
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The fundamental problem is, you have organizations whose core competency is subverting democratic governments and collecting monopoly rents. They don't know how to do anything else: and their basic skills aren't useful in any honest business. How COULD they change?
The most you could ever hope for, is that a few individuals might become disgusted by the despicable goals and methods of the company, and leave to seek honest employment. But they can be replaced--there's a sociopath born every minute.
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I quit watching TV about the same time I got the internet, around 1997. I suddenly had something more compelling to take up my time.
A cell phone doesn't get TV signals. You think some kid is going to put it down and start watching TV? No, they're just going to find something on their cell phone worth spending their free time on.
Big media's business is all about control. When you watch, how you watch, and most importantly what you watch. It is the only defense they have any more. They know the internet means giving up control, and they'll do everything they can to make sure they control the internet. They already control the government (Why does it cost so much to get elected? Broadcast advertising.)
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For a good example of this, just watch the smartphone market, where they make miniscule tweaks to the product and then market it as though it's completely new and groundbreaking.
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If your gonna fight Netflix, for example, your gonna need something, and if I knew what it was, I would be working on it, and it might be innovation. Of course from the Hollywood perspective, that innovation will be a one way street of DRM encumbered drivel on loan in exchange for a large regular percentage of your, and your children's, income.
If your gonna fight Google, for example, your gonna need something newer than what they got. And so on.
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They just killed it.
The Netflix streaming service is pretty effectively hamstrung by all of the incumbent network and content providers. It really would not take much to offer something better.
The real problem is having the will to do it.
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It'll do a lot better for all our governments as well.
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what else is substantially similiar
I believe the biggest market of locally rented DVRs are the cable companies. How long until broadcasters go after the cable companies for not paying public performance fees for all those leased DVRs? They're already going after Dish after just one day.
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Re: what else is substantially similiar
https://www.techdirt.com/articles/20080804/1218551884.shtml
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Look Out, Netflix!
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Re: Look Out, Netflix!
Aereo isn't "illegal", it's just that it's essentially a cable operator and as such, must meet all of the obligations of such an operator.
Netflix has no issues because (gasp) Netflix actually pays for the rights to stream the videos.
Also, Netflix does not stream OTA TV.
WTG - you totally misunderstood things in a way that makes you a Techdirt standout pupil!
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There is nothing logical about copyright. It's impossible to make a logical statement in support of it.
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its the Techdirt defence of
BUT BUT BUT BUT...... TECHNOLOGY !!!!!
(or, "Won't ANYONE please think about the TECHNOLOGY?")
it is not logical and factual information that makes you are troll here, just say something they don't agree with.
Or dare question Masnicks authortah
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So no to technology? Sure, let's start with solar panels. Yours, in fact.
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Opinions, world cup and pocket lint
There are plenty of opinions online, and not all of them so against the judgement. This one I think is somewhat more balanced:
http://www.tvnewscheck.com/article/77351/takeaways-from-the-abc-v-aereo-decision
I think this one is pretty interesting as well:
http://www.american.com/archive/2014/june/aereo-decision-a-boon-not-a-bane-for-innovation
Not surprising to see this at SCOTUSBlog, considering it comes from the EFF:
http://www.scotusblog.com/2014/06/symposium-aereo-decision-injects-uncertainty-into-copyright/
Wh at I think is important in the Aereo decision is that the court wasn't razzle dazzled by Aereo's attempts to gingerly step around the law, and instead backed up a step and looked at their intent, and what the service provided. They received a signal at point A, and delivered it to customers at various points in the area, pretty much exactly like a cable company. You can call it the "walks like a duck" decision, but really it's more like a good indication that the court isn't going to fall for using technology to try to side step the law.
In the long run, I think the decision is good for the concept of this business, for a bunch of reasons. 10 years from now, we will look back and realize that it changed the landscape and helped move forward bigger things.
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Re: Opinions, world cup and pocket lint
To comply with crazy copyright laws.
Fixed that for you.
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Sorry. That logic doesn't hold much water.
To get through the "loophole" in jaywalking laws I'm "doing all sorts of obvious contortions" by "carefully positioning myself" at the crosswalk, which "would not normally occur" because it's a half a block away.
You wording things differently doesn't magically change the legality of things.
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If jaywalking is a crime unless your feet never actually touch the road while doing it, it might be considered finding a loophole in getting someone else to carry you across the road, or perhaps building a launcher that can project you across the road without touching the ground. Maybe you go Wyle Coyote and strap an Acme rocket to your butt. In those cases, you have gone through some obvious contortions to trying to get around the law. However, you are clearly still jaywalking, just trying to get away because of a technicality.
You wording things differently doesn't magically change the legality of things
Sorry I am not the best at explaining things to you in very small detail. Safe to say that Aereo's business model was predicated on putting a number of rulings together, and stretching them very thinly to cover the empty spaces between them. They got nailed because Congress had very specifically created regulation regarding cable TV and similar rebroadcasting / redistribution systems. All the antennas in the world couldn't get them past the basics.
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No. You are factually incorrect. In those cases, you are not, in fact, jaywalking.
In your first case, the person carrying you is jaywalking. In your other cases, you are not even actually causing the danger resulting from jaywalking.
Admission that you are factually incorrect coming in ... never.
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I won't bother to clarify any further, I am sure you would find some way to say it's not so and nit pick on details. It's never the point to discuss jaywalking, just to make a point. Then again, I suspect you know that, conversation killed perhaps?
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How about a cite about a convicted jaywalker who didn't walk across the street. You like cites.
By the way, the point is that you are incapable of admitting you are wrong.
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My point was ways that you could jaywalk given the technicality of your feet having to be on the ground to be guilty. You could do things that would let you move an inch about the ground and based on the judgement, be legal - but you would still be jaywalking.
You know that. But hey, nice bait. You can stop now.
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You gave specific examples. Please provide a citation, because none of them were jaywalking.
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No, I think you are missing the point. You went off on some weird tangent about being carried across the road or using a rocket as the "loophole". The "loophole" in the my jaywalking analogy is simply crossing the street at the crosswalk. Or in everyone else's vernacular, except yours: "following the law".
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I use the "loophole" in jaywalking laws and cross the street legally at the crosswalk, but SCOTUS rules that I really didn't cross the street legally because my walking at the crosswalk looks to much like what a rickshaw service does.
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Copyright law was written as granting exclusive rights to creators for a limited time while preserving specific fair use exceptions from limitation under copyright.
Perpetual and retroactive extensions on copyright duration are now roughly double the average life span of a person (with more to come). It may comply with the letter of the law but not the purpose, and it "looks like" an unlimited time to the typical mortal.
Similarly, DRM restrictions and DMCA anti-circumvention clauses may follow the letter of the law, but is clearly exploiting loopholes to effectively forbid the forms of fair use exempted from copyright restriction under the law.
Therefore the Supreme Court should rule as it did in Aereo that because copyright maximalists are clearly exceeding the limited rights reserved under copyright law and the constitutional authority under which it is granted, it "looks like" copyright duration should be treated as shorter than the average human lifespan and nothing should block the exercise of fair use. The law as written conflicts with what Congress must have intended, therefore all loopholes can be closed by court order rather than having Congress amend or modify the law to fix it.
I look forward to your attempts to explain how Aereo should be punished for (as you put it) exploiting broadcast laws to avoid paying fees that cable has to pay, but Hollywood should be rewarded for their ingenuity in finding new ways to exploit copyright laws to avoid duration limits and block fair use.
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Re: Opinions, world cup and pocket lint
You must have completely ignored the article and went straight to trolling the comments. This article is all about how even Hollywood finds this decision problematic.
It's a case of doing the wrong thing but also doing it for the wrong reasons. A bad legal principle will sabotage all sorts of other "more legitimate" innovators for years to come.
"walks like a duck" is a piss poor legal principle and Scalia said so himself.
The idea that "gaming the rules" is bad is just assinine. The rules are what they are and people adapt to them in many contexts.
If you can't depend on the rules then potentially ALL commerce breaks down everywhere as no one can be sure that their efforts will ever yield them their rightful economic rewards.
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Yes, the article is how narrowly selected groups in Hollywood / Entertainment find this a poor decision. But overall, it's just part of 24-48 hours of whining on Techdirt, just search the number of posts about the decision.
"walks like a duck" is a piss poor legal principle and Scalia said so himself.
Yes, in the very small minority. Thankfully, the case is settled by the majority decision, not the minority one. The minority's arguments, while good are not the opinion that counts at the end of the day. 6 justices saw through all the twisting and turning and called Aereo out for what they are.
If you can't depend on the rules then potentially ALL commerce breaks down everywhere as no one can be sure that their efforts will ever yield them their rightful economic rewards.
Yup, you just explained the Aereo decision perfectly. You have to depend on the rules, even if the rules are against you. Trying to end run around them or dodge through a loophole and claim to be entirely legal is generally not the right way to go.
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Except that's no longer true.
Aereo had such a technologically insane setup because that's what it took to stay within the law as it was written, yet it was still found to be violating the 'spirit' of the law according to the court, so 'depending on the rules' didn't get them very far.
If you cannot determine whether or not a service is legal, because while the law as written allows it, the 'intent', which is going go be subjective and based upon who's deciding it at the moment becomes the deciding factor, then that is going to kill off a lot of potential services, because the line between 'legal' and 'illegal' is now based not upon how a service does something, or what they do, but simply what it looks like, which again is a subjective opinion, and can be interpreted different ways depending on who's making the call.
Also, I keep seeing those lines, 'dodging around the law', 'taking advantage of a loophole', guess what, something is either legal or illegal, no gray area. The idea that you can follow the law, yet still be found to be acting illegally because you're somehow trying to 'dodge around the law' would open up a massive can of worms, as it would be impossible to determine what is, and is not, illegal ahead of time.
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The point is that all the technical trickery in the world means nothing if you by action still breaking the law. Touching a bunch of bases that make it safe still doesn't add up. It was a good try, but just too many things piled up legally against it.
If you cannot determine whether or not a service is legal, because while the law as written allows it
Not really true here. The law allows for rebroadcasting systems to be legal provided them embark in the compulsary royalty rate system. Failure to do so would make them entirely liable under copyright. The law is right there if they go and read it.
SO far it's pretty much been a given that all sorts of similar systems are subject to the law. You know, IPtv, DBS, and so on. They are all in the boat. Aereo tried very hard to use narrow legal ruling on top of narrow legal opinion on top of technology sleight of hand to avoid it, but SCOTUS clearly (as clear as 6-3 can be) saw them as what they are - a live TV distribution system.
something is either legal or illegal, no gray area.
you are correct, and that is Aereo's problem. They tried to define grey in a black and white situation and lost.
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For public broadcasters perhaps, but the idea that one stream, from one antenna, to one person, is a 'public broadcast', and should be treated as such, is pretty insane.
As an example, under the 'looks like a duck' logic, intentionally reducing the taxes you owe/pay, through purely legal means(charitable donations, taking advantage of special offers, that sort of stuff), could be seen as tax evasion, an illegal act, because in both cases, you're acting in a manner that would lead to you paying less taxes. Even worse, you're taking advantage of 'legal loopholes' to do it, which obviously means nefarious intent.
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You just explained why bulk data collection is perfectly legal. One fact collected by itself isn't an issue, is it? So doing it a bunch of times with a bunch of facts isn't an issue, right?
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I'll probably regret this, but, in response to your red herring, bulk data collections differs in that singular, targeted data collections are legal because they are targeted, both in what is going to be collected, and who is going to be targeted.
In contrast, 'Everything, All The Time' satisfies neither of those requirement, so while the individual collection of data is legal and constitutional(assuming a proper warrant of course), the latter is only 'legal' and 'constitutional' as long as they can keep it from ever being challenged in a real court, and/or only have sympathetic 'judges' rule on it.
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Aereo's basic defense it seems is that it's just an antenna provider, scaled up. You know, the one guy, one antenna thing, repeated endlessly. If it's legal once, it's legal a million times, right?
Bulk data collection works the same way. If collecting a single piece of info is legal, then it's legal a million times, right?
Scale does actually have some bearing here. Likely if they sold individual units that you installed in your home and controlled yourself, they wouldn't have so much of an issue. That they are enabling and providing a content delivery system of OTA programming is sort of where they cross the line, especially when they do it scaled up.
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Now, I've seen it a couple of times, and I know you have too, the list of 'If this is legal, move on to the next one, if not, state why', and I felt that summed things up fairly nicely in pointing out that pretty much everything Aereo did was perfectly legal... if someone did it on their own, or paid someone else to do it. And yet, somehow, when a company did it, it became illegal.
Likely if they sold individual units that you installed in your home and controlled yourself, they wouldn't have so much of an issue.
First of all, the placement at the customer's home idea would negate one of the big reasons for it, that of getting tv that you would otherwise not be able to due to lousy reception where you're at and similar concerns. As for control, the customer was the one in control of what they watched, so not much change there.
The 'sold' bit could have been interesting, if the customer owned the mini-dish, rather than rented/leased it(not quite sure which it was offhand), be interesting how that would have affected things, though my gut feeling is that it wouldn't have, since they still would have gone with the 'looks like a duck' way of judging things.
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Yeah... it's called cable TV. Congrats, you just explained the decision all by yourself!
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Oh yes, brilliant, that just solves the problem nicely. /s
However, your response did point out quite nicely one of the main reason cable companies were throwing a fit over Aereo, it was providing competition. If people can get their tv from Aereo after all, no need to sign up for cable now is there?
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"Looks like cable" has changed the legal interpretation of thousands of individual private secondary transmissions (not infringing) as being legally identical to one single public secondary transmission (is infringing: subject to compulsory license/retransmission fees). Who knows what other legal definitions will be reinterpreted in future "looks like" rulings by the court.
Ultimately, the source of the problem is the problematic section of the 1976 Copyright Act that Congress passed to placate the broadcasters in the first place. 17 U.S. Code § 111 The likelihood of Congress fixing that is as likely as Disney allowing Mickey Mouse to enter the public domain.
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Whining tech dirt = pathetic ad hom.
Twisting and turning by Aero = complying with the law.
How exactly is "looks like a duck" a clear rule to follow?
Loop holes are used all the time because they are legal. By definition.
Can you precisely state what rule Aero broke?
And the best. Can you cite anywhere you admitted you we wrong.
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photo-copies vs. used books
The same with images and manuscripts posted online by library archives and special collections, accompanied with claims of "proprietary rights."
A local historical society places its collection into a public library, and demands that the "board" has to vote on whether I can include my grandmother's picture in my family history book or not; then they want a copy of my book for free. How do they know if there are other portraits floating around that are copies of the one they have?
Doesn't matter? What matters is the end result? The archives posted my grandmother's picture online, and my grandmothers' picture is in my family history book, therefore I must have "used" it without permission from the historical society, the custodian of a copy of the picture.
Say what????
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Don't share
Interview with Tom Edwards, former president of the Berkeley Historical Society
Minow: The central question I’ve been asked to explore is whether museums, archives and libraries can charge for the use of scans they’ve made of items that are in the public domain.
...
Minow: Tell me about the lawsuit.
Edwards: Actually, there were two.
...
If I had it to do over
...
3) Invest some time, money and effort in developing a tighter one-time use agreement for sharing your photos. We thought it was satisfactory, but we know more now, and have tightened it up. Now it reads:
Berkeley Historical Society Photograph Collection
One-Time Use Agreement
...I agree ... not to ... share... the Image
...
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Seriously, the opportunities still exist. As long as your innovation isn't 100% dependent on getting the content belonging to others for free. Look at Netflix, Amazon Plus and Hulu. They manage to pay for content and still have successful business models.
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This is rather like a shop charging extra because you are shopping for someone else, who is paying for your petrol and time.
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They follow the law to the letter, They are law abiding.
They make a profit.
Ergo, they should pay a tithe to someone who would not have made any additional money had they not existed?
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It is perfectly legal for me to set up a remote viewing set up for myself (& not pay anything). It would function substantially like one of Aereo's individual units (though, I'd cut out commercials). The Supreme Court decision even says so (they talked about Aereo doing it for a bunch of people being one of the main problems; & other decisions, which Aereo relied on, say time & location shifting for TV shows is perfectly legal).
But why does it magically become illegal for someone to do it for me?
For example, say I live in LA, but am going to be in, say, New York, & wanted to watch some show only available in LA while I'm on my trip. I could rig a setup to record & stream it to my room in NY. That would be perfectly legal. So, why is it illegal for Aereo to do that for me? &, IIRC, they're not even offering that much, I think they restricted the shows to only what's available locally.
This is exactly Aereo's reasoning. If a citizen can legally do it w/o paying, a business shouldn't have to pay either. If all of Aereo's customers set this up on their own, w/o Aereo, it'd have the same effect (though, they'd likely also skip the commercials), but not be illegal. This is why so many have a problem w/ the ruling.
& I just realized something. Aereo could go from online to offline as their compliance w/ the Supreme Court Opinion. If they physically rent out & mail their equipment to the people, that way they don't have anything to do w/ the recordings in any way (except for providing the equipment) & it would inarguably be a private viewing, but they still can collect the subscription fee as a rental fee.
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That defeats what made Aereo attractive, putting an antenna in a place where it would receive signals for people who could not put up an antenna, or receive signals if they did.
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[1] I'm not sure what the term used in US property codes is - here a strata title is a sub-title to a piece of property, offering something less than full ownership f the freehold, which can be arbitrarily nested. Apartments are usually under strata titles, and offices often are as well.
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Maybe you should be arguing for some kind of term limit for Supreme Court Justices, 10 years anyone?
Besides, think of what having a bunch of retired justices around would do for the publishing industry. :)
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While older people in general may be less likely to be familiar with newer tech, not having grown up with it, it doesn't automatically follow that individuals are ignorant on a given tech subject, anymore than it would be a safe assumption that a younger person would be familiar, and know a good amount on, a given technological subject/field.
The problem isn't age, it's ignorance, and I don't know about you, but I'd much rather have an older, but informed person making judgements on stuff like this, than a younger, but less informed one doing the same, just on the assumption that being younger makes them more able to understand it.
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life well spend there Mick the nick...
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Fucked your solar panel wife yet today?
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*(unless it looks like cable)
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