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It’s a Bird, It’s a Plane, No . . .

Thanks to Eric Goldman’s exhaustive account of Symantec’s preemptive strike against Hotbar (“Is too adware”; “Is not”; “Is too”), I can tease out a point about the Brand X opinion that I found noteworthy even if a lot of people found it distracting and beside the point. I’m talking about the Thomas/Scalia feud over pizza delivery.

The pizza delivery feud is the Court’s way of articulating its disagreement on the merits. The underlying question in Brand X is whether cable broadband providers “offer” a “telecommunications service” or “information service.” Thomas and the majority argue that it’s plausible for the FCC to conclude that providers “offer” an “information service.” Scalia and the dissenting Justices use the pizza delivery analogy to disagree. The dissent says: If you order pizza to be delivered, the pizza store “offers” delivery (aka “telecommunications service”) in the ordinary sense of the term, even if it’s meaningless in a technical sense to suggest that “delivery” can be had without the “pizza” (aka “information service”). The majority says that since you can get pizza without delivery, pizza stores that deliver “offer” pizza, but don’t “offer” delivery. If the pizza is delivered, delivery is bundled with the pizza, and cable broadband providers “offer” pizza (“information service”) but don’t “offer” delivery.

So what is “it”? Are pizza and delivery “separate objects of the offer” (Scalia) or “integral components of the finished product” (Thomas)?

Underneath it all, neither Brand X nor Symantec v. Hotbar are really about what the thing “is”; categorization debates are proxies for policy arguments. But policy arguments are really, really hard (if the Court could agree on a policy baseline, it wouldn’t need to order pizza), and categorization debates, while not easy, are at least manageable. Moreover, we’re used to them, both in law and in daily life. We have literally centuries of knowledge to bring to bear on them. And if we look hard at how categorization arguments are constructed, we might be able to use them as more effective proxies.

There’s a conceptual relationship between Brand X and Symantec, then, even though the cases on the surface couldn’t be more different. Scalia’s right in using a common sense approach (both to pizza delivery and to “information service”), but the point is that he’s relying on how products and services are perceived — by consumers, or by the market, or by some audience. Symantec is saying the same thing: It doesn’t matter what Hotbar says its product is. Symantec (as a stand-in for the consumer/market/audience) says that it’s adware.

We don’t have to rely on consumer/market/audience definitions in all cases. Doing that is a choice. We might rely on the producer’s definition: Hotbar says it’s not adware, so it’s not adware. Or on some “objective” definition. Watch that choice, and consider how the policy argument might be framed differently — better? worse? — under a different option. Note that this is true not despite but precisely because of the frequent arbitrariness of bundling components and services in certain ways. Given the inevitable centrality of the categorization problem, the manipulability of things means that we should be paying more attention to them, not less.

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