Because Judges are Illiterate

The title of this post comes from an inside joke (although since I suspect only 4 people will read this I guess maybe you'll all get it) involving something that someone in my study group had written in his notes for Leg Reg about why agencies were better at making decisions in some areas than judges. Of course, what he meant was that some judges are technologically illiterate, especially concerning some of the more specialized areas of regulation that administrative agencies cover. We shouldn't expect a judge to be an expert on the mating habits of the spotted owl or the air quality of classic car emissions, which is good because they usually aren't. In a post-Chevron world we've worked around this problem by limiting the concerns of judicial review of agency actions but that doesn't mean we still don't run into problems of technologically illiterate judges.

I want to take a brief moment to make clear that I'm not talking about all judges. Some judges are amazingly savvy when it comes to technology. When the Supreme Court looked at the issue free speech protections for video games in 2011, some justices clearly knew their stuff. Chief Justice Roberts commented about the ease with which children can bypass parental controls, Justice Sotomayor discussed how the law would treat games featuring the deaths of Vulcans different from humans, and Justice Kagan talked about Mortal Kombat. Justice Scalia, on the other hand, said "I don't know what she's talk about" in response to Kagan's discussion of the game. A lack of knowledge doesn't necessarily result in bad decisions making. Justice Scalia may not have even put a finishing move on an opponant but he still wrote the majority opinion that gave first amendment protections to video games. Scalia got it right in that case, but sometimes a lack of technical knowledge leads to a bad result.

Which brings us to U.S. District Judge Richard Seeborg who recently dismissed a class action lawsuit against Activision and Sony over claims that the Call of Duty games caused first generation Playstation 3 gaming systems to overheat and break. You can read the entire complaint  for yourself but this passage highlghts the problem.

The only misrepresentations identified by the SAC [ed. note Sony America Corportation] on the game itself areSony’s logos – “PS3,” “PlayStation Network,” and “Only On PlayStation.” Plaintiff evidently ascribes a great deal of significance to these phrases, as the SAC contains no other allegations about the videogame’s packaging or the documentation that may have accompanied it. Given that the SAC acknowledges that the PS3 line includes numerous models released over a number of years, it is difficult to accept Garcia’s allegation that the mere presence of PS3 logos on the front of the game’s box, without reference to other disclosures that may have appeared on it, constitutes an affirmative misrepresentation that would deceive a reasonable consumer into believing that all such branded games must be compatible with all PS3 models in perpetuity, or at least for some unspecified number of years.

 As any gamer knows, yes, that is exactly what that logo means. Judge Seeborg may be thinking of a situation common with PC ownership, where a windows XP logo on a piece of software doesn't mean it will work with your XP computer because of other issues with memory or storage or the video card. That isn't the case with gaming consoles. As a friend of mine who works in the video game industry pointed out, "Consoles don't change their min specs like PCs. That's the whole point of them."

The same friend observeed that it's unlikely that any game could cause this type of problem with the console (especially because of the massive quality control process devlopers and Sony puts on games before they reach store shelves) but that it an issue of fact for the trial. To dismiss on failure to state a claim in this situation, for this reason, doesn't seem right. 


It does serve as a good lesson for us (hopefully one day) practicing attorneys that you can never assume a certain level of background knowledge in the judge. As someone who grew up with during the Video Game generation (I remember PONG) I would have assumed that everyone knew that newer games made for a console are still expected to play on that console. If it didn't that it would be expected to have a notice on the box saying that.  I just expect it, the way I expect a new CD to work in my cars CD player even though it's seven years old. I probably would have made the same mistake as this lawyer and not written in some workding about how all games made for the PS3 are expected to work on the PS3,including those made for the first generation. And clearly, that would be a mistake. 


Sure, this was an error on the part of the judge. It was a bigger error on the part of the lawyer for assuming that the judge would know this. Justices Kagan and Sotomayor may have allowed this suit, but they weren't the ones on the bench.