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Do We Really Needed Judges That Can Code?

By George Khoury, Esq. | Last updated on

Despite what the tech crowd would have you believe, the court, judges, and juries, do not need to know how to code to rule on cases involving software programs. In fact, having experienced jurors and jurists could actually lead to deeper confusion, or potentially improper influences.

The U.S. justice system is setup to present conflicts before neutral fact finders who rule based on the evidence and law presented, not their own personal knowledge. While some might think that highly technical disputes require a jury or judge that can understand the technicalities, in reality, those disputes require attorneys that can properly explain the technicalities via experts and evidence. A trials is not meant to be a "hack-a-thon."

Court Created Evidence

When a jury or jurist has a background or some experience in the same industry as the case they are tasked with deciding, the risk of preconceived notions and biases influencing the decision is very real. Also, there is a significant risk of the other jurors looking to the experienced, or knowledgeable, juror as the arbiter of truth.

For example, in the big Google v. Oracle case, Judge William H. Alsup of the federal Northern District Court of California earned himself a reputation as the geek judge because he learned a bit of Java. And while his prior experience as a hobbyist programmer impressed tech reporters (and this blogger), particularly as he seemed to follow along with the attorneys' arguments, there clearly were some pieces of evidence pulled from his personal experience. When asked about some code that he reviewed, Judge Alsup boldly declared that even he had written similar code over a hundred times.

Notably, the ruling that earned Judge Alsup his reputation as a coder was promptly reversed on appeal, which begs the question: Should judges handling code copyright cases be more concerned with understanding the code or the law? Or, are tech savvy judges necessary for technical tech cases?

Programmed Bias

Implicit bias does not just apply to race, gender, or other physical characteristics. Generally, what we know, and how our minds are programmed, influence how we think. In any jury selection, no attorney wants a juror that can credibly explain technical concepts to other jurors. You want your experts to explain those concepts.

For the same reason you don't want a brain surgeon on a TBI jury, or a trial/litigation lawyer on any jury, you don't want programmers deciding your code copyright case.

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