[rayiner]

Note that the article takes Breyer's question about phonograph record stores way out of context: https://www.supremecourt.gov/oral_arguments/argument_transcr... (page 6).

Breyer asked:

> If we take the public performance, maybe we run into what Professor Nimmer saw as a problem. Why isn't what used to be called a phonograph record store that sells phonograph records to 10,000 customers giving a public performance?

The bit about "phonograph record stores" is actually referencing a hypothetical posed by Prof. Nimmer in a 1982 textbook, which addressed the 1976 Copyright Act amendments at issue in the Aereo case. That hypothetical came up in an amicus brief to the court: https://www.americanbar.org/content/dam/aba/publications/sup... (at 7-8).

Breyer is talking about phonographs because that hypothetical references phonographs (and everyone is trying to understand what Congress meant in 1976). Note that a few pages later, Justice Sotomayor asks the attorney to extend the hypothetical to Dropbox and iCloud.

[dionidium]

It seems plausible to me that something similar was driving Alito's question about compact discs, which this article also derisively referenced. It sounds to me like he might have been attempting an analogy about physical media in order to find out if there were meaningful lines to be drawn between types of storage.

[rayiner]

I think you are correct: https://www.supremecourt.gov/oral_arguments/argument_transcr.... Starting on page 17, the Justices are addressing the argument that California downloads everything on the phone, and that a smartphone has one's "whole life" on it. Justice Roberts asks "what if it's a FitBit and not a smartphone?" Justice Alito then raises the examples of a flip phone and then a CD.