A chilling piece of science fiction projects the future of our most frightening tech-law trends: what will the mission-creep for memory erasure look like? Stop the Music By Charles Duan I. In the District Court for the Central District of California



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



Complaint for Copyright Infringement



February 18, 2044 comes now plaintiff, Eugene L. Whitman, by and through his

attorneys, and bringing a complaint against Alfred Vail Enterprises,

Inc., states: 1. Plaintiff Whitman is a songwriter and composer of the popular

song 'Taking It Back.' 2. On January 14, 2044, Defendant Vail Enterprises first

distributed the now-hit song 'Straight Focus.' 3. 'Straight Focus' includes an eight-note sample from 'Taking It

Back.' Vail Enterprises accordingly infringed Whitman's copyright by

making an unauthorized derivative work. Wherefore, Whitman prays for judgment against Vail Enterprises

as follows: A. A permanent injunction prohibiting Vail Enterprises from

continuing to infringe Whitman's copyright; B. Destruction of all copies of 'Straight Focus' in Vail Enterprises'

possession; and C. An order requiring Vail Enterprises to erase the song 'Straight

Focus' from the memories of all persons residing in the United

States. II.

In the District Court for the Central District of California



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



Answer of Alfred Vail Enterprises, Inc.



February 25, 2044 Defendant Alfred Vail Enterprises, Inc., answers the Complaint of

Plaintiff Eugene L. Whitman as follows: 1. Vail Enterprises is a corporation of the State of Delaware, with

headquarters in Los Angeles, California, and is wholly owned by Alfred

Vail. 2. After a long and successful career in the neurobioengineering

industry, Mr. Vail decided to enter the field of music. His first

composition, 'Straight Focus,' was a unique and innovative work of

music, reviewed by critics as 'the sound of a new technological

century' and 'a breakthrough piece at the intersection of brain science

and art.' 3. Besides being a critical success, 'Straight Focus' was a

multinational hit. It was viewed on video sharing sites over 350 million

times within a month of its release. But more indicative of its

popularity are the appreciation videos, remixes, and cover versions that

its fans have made. 4. Mr. Vail wrote 'Straight Focus' in memory of his daughter,

Sarah Vail, who passed away as a teenager due to complications of

leukemia last year. The piece is made up of fifty of Ms. Vail's favorite

musical works, which Mr. Vail arranged using his creativity and

experience in neurological science to produce an unexpectedly

emotional tour de force of sound. One of those works was the Plaintiff's

piece 'Taking It Back.' 5. The included portion of 'Taking It Back' in 'Straight Focus'

was minimal, and it has not diminished the value of the former piece.

Indeed, the popularity of Mr. Vail's composition has sparked

significant interest and increased sales in all of the source pieces.

Accordingly, Mr. Vail's use of a small portion of 'Taking It Back' is

not copyright infringement, or, at a minimum, is fair use under 17

U.S.C. § 107. 6. Furthermore, Plaintiff Whitman's proposed remedy of erasing

all memory of 'Straight Focus' from people's minds is unprecedented

and absurd. No court has ever ordered or authorized a total memory

erasure on the public in a copyright case, and it should not be ordered

or authorized here. III.

In the District Court for the Central District of California



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



Opinion and Order on Memory Erasure



June 20, 2044 Opinion of Benson, District Judge. The trial jury found that Defendant Vail Enterprises had infringed

Plaintiff Whitman's copyright. Plaintiff now seeks from this Court an

order to compel Vail Enterprises to erase all memories of the

infringing song 'Straight Focus' from the minds of every person

residing in the United States, using the National MemSweep

system. This is a highly unusual and unprecedented form of relief that

Whitman seeks, and so some background on the system is in

order. The National MemSweep system developed out of the MemSweep

technology invented by Alfred Vail in 2028. Prior advances in

neuroscience had revealed that human memories could be altered or

erased by agitation of brain cells, but those procedures were

invasive and risky, accordingly only being used in particularly

unusual situations of mental illness such as post-traumatic stress

disorder. Vail discovered that certain rapidly fluctuating low-frequency sound

waves could be used to perform the same brain cell agitation, thereby

allowing for erasure of memories safely, and noninvasively, and with a

great deal of precision as to time and subject matter of the memories.

The resulting technology, which he called MemSweep, was offered as a

consumer-level service, often to erase memories of embarrassing events,

ex-lovers, and traumatic situations. The consumer service unexpectedly became a national security

defense, at the time of the August 2039 terrorist attacks on the United

States. The Central Intelligence Agency had intercepted an encrypted

communication detailing a plot for multiple simultaneous bombings on

several major cities. The CIA knew the attack would happen within a

week, but otherwise could not decrypt the messages to identify the

details of the plan. With time running out, the CIA in a last-ditch

effort procured thousands of large, high-fidelity speaker systems,

distributed them around cities, and loudly played MemSweep

recordings designed to erase memories of all conversations held during

the time of the intercepted messages. The results were striking: San Francisco and Washington, D.C.,

where MemSweep was deployed, saw not a single bombing, while

New York City, where MemSweep was not deployed in time, was

devastated. Following those attacks, the country moved quickly to deploy

MemSweep on a national scale. The resulting array, known as the

National MemSweep system, covers every square inch and every person

of the United States, and can ensure total erasure of an idea from the

populace. The system has been used infrequently but occasionally, and

under strict judicial supervision, to foil terrorist plots and avert crimes,

to great success, and the CIA and military have investigated

applications as well. But the National MemSweep system has never been used to

vindicate a private party. It so far has only been activated to remove

ideas of crimes or public dangers. So Whitman's request to use

the system to remove memory of a song is truly unexpected.

This Court has not a single prior decision or precedent to stand

upon. As an initial matter, an order for a party to use the National

MemSweep system would almost never be appropriate, since this

Court can only order a party to do something that the party can

do, and operating National MemSweep is not something that

most people can do. But Defendant here is an unusual exception,

because Vail Enterprises owns the system. The Alfred Vail who

invented MemSweep went on to found Vail Enterprises, which

financed and built National MemSweep, and continues to own it.

Thus, an order to use the system could actually be issued against

him. Whitman contends that 17 U.S.C. § 503(b) permits this Court to

order Vail Enterprises to perform a memory erasure of the song.

That law says that this Court 'may order the destruction…of

all copies or phonorecords found to have been made or used in

violation of the copyright owner's exclusive rights.' Because

the neurons storing memories of the song constitute 'copies or

phonorecords,' Whitman argues, this Court has the power to order

Vail Enterprises to conduct the 'destruction' of such copies by erasing

memories. I am sympathetic to Whitman's position. Whitman is clearly

very protective of his musical works, refusing to allow anyone

else to make derivative works or alterations of them, out of his

personal desire to ensure that his music remain 'untainted.' He is

allowed to do that, as copyright owner. I have already ordered

Vail Enterprises to destroy all physical copies of the infringing

song. But it is unclear, in my view, whether ordering the destruction of

memories is a bridge too far. Perhaps it is; perhaps it is not — no other

court authority provides any guidance on this question. If a Court of

Appeals or the Supreme Court were to find such an order permissible,

then I would grant the order. But until I have support from a court

above, I find it necessary to err on the side of caution and not

to order Vail Enterprises to erase memories of the infringing

song. Motion denied. IV.

The Washington Post



Supreme Court to Hear Case on Memory Erasure



February 12, 2046

This morning, the Supreme Court will hear arguments in a closely

watched case over the ability of a songwriter to use his copyright power

to erase from the minds of all Americans a song deemed to infringe

that copyright.

The case, Whitman v. Vail Enterprises, pits songwriter Gene

Whitman against neuroscientist-turned-remix-artist Alfred Vail, over

the former hit song 'Straight Focus.' A jury in 2044 decided that Vail's

song infringed Whitman's copyright. Immediately afterwards, the

Recording Industry Association of America issued commands to the

Federal Digital Rights Management system, automatically deleting all

versions of the song from all online sites and personal computing

devices. 'Straight Focus' has not been heard in the United States for

over a year now.

But Whitman found the deletion of 'Straight Focus' from all

devices to be not enough. Intensely protective of his works, Whitman

sought a further order from the court for deletion of 'Straight Focus'

from all people's minds, using the National MemSweep system owned

by Vail.

The trial court refused Whitman's request, stating that it would not

order the use of National MemSweep without guidance from the

Supreme Court.

Whitman declined to comment on the case. Vail, in an interview,

expressed 'exasperation' that the case had even reached the Supreme

Court.

'My song 'Straight Focus' holds a lot of meaning to lots of people,'

he said. 'For me, it's a memory of my daughter, who I lost three years

ago. And fans of the song have created their own meanings and

memories from it. It boggles the mind why Gene Whitman can selfishly

wipe out all those thoughts with some sort of claim of copyright

ownership.'

This is the second recent case on the National MemSweep

system to reach the Supreme Court. The last case, United States

v. Neilson, tested the constitutionality of the system as used to

suppress criminal activity in the wake of the August 7, 2039

terrorist attacks. A sharply divided 5-4 decision affirmed the

system.

Writing for the majority, Chief Justice Diehr rejected challenges

under the First, Fifth, and Fourteenth Amendments, finding National

MemSweep to be 'a necessary tool of a technological society to prevent

wrongdoing and malfeasance against the public.' An air force veteran

and former Department of Justice prosecutor, the chief justice likely

drew from her years of experience serving in the United States

military when she concluded that 'the ever-increasing threats

to this nation can only be met with ever-increasingly effective

defenses.' Furthermore, she wrote, 'the duties of citizenship must

at least include the surrender of personal thoughts if to do so

would protect the greater good, just as one may be called to

surrender liberty or property in times of war for the good of the

nation.'

A strongly worded dissent by Justice Diamond dismissed

the idea that 'the human mind is the plaything of the federal

government.' Reflecting his background as a former civil rights lawyer,

the justice interpreted the Constitution and Bill of Rights to

include 'penumbras' of guarantees of privacy and freedom of

thought. These were strongly in conflict with non-consensual

memory erasure, in his view. He cited to the case Americans

for Digital Rights v. Gottschalk, which held that collection of

online data was an illegal search under the Fourth Amendment.

Twenty-five years ago, Justice Diamond was the attorney for ADR in

that case, which finally struck down pre-Internet caselaw that

had been seriously questioned by Justice Sotomayor back in

2012.

Justice Flook, who wrote a separate concurrence, indicated that he

was 'on the fence' due to the 'troubling implications' of widespread

memory erasure, but on the whole found that the benefits outweighed

those issues. He will likely cast the swing vote in the case, and all eyes

will be on him during the argument.

The justice is a former law professor, whose interests and writings

focused on environmental and natural resources law. Reflecting his

academic prowess and his environmentalist passion, the justice's

opinion in Neilson, like many of his others, is both analytically brilliant

and emotionally torn. 'I sincerely fear,' he wrote, 'a world where my

memories and the memories of countless others can be erased at

the flip of a switch. But I fear attacks of terrorists no less. So

long as I can be satisfied that memory erasure is limited to the

most necessary of situations, my first fear will remain sufficiently

contained.'

The argument will begin at 10:00 AM, and the case is Whitman

v. Alfred Vail Enterprises, No. 45-405.

V.



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?

VI.



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.

VII.