In 1940s S.F., Stephen Breyer developed ‘a trust in, almost a love for, the possibilities of a democracy’

It’s that the questions he would grapple with as a legal scholar, such as whether computer software is subject to copyright law, were unthinkable in an era when dictionaries defined computers as “one who computes.’’

In the 1940s, when Breyer was a kid, the Bay Area’s biggest technological breakthroughs were the new bridges that connected The City to Marin County and the East Bay. Bill Hewlett and David Packard were still decades away from producing calculators, let alone computers, and neither Steve Wozniak or Steve Jobs had been conceived.

Yet it was those formative years — digging ditches for PG&E, serving salads at Camp Mather, advancing from Boy Scout to Eagle Scout and voted most likely to succeed in his high school graduating class — that Breyer developed “a trust in, almost a love for, the possibilities of a democracy,’’ he said at his confirmation hearing before the Senate Judiciary Committee.

Breyer became fascinated by copyright law as a young professor at Harvard Law School, which he attended after graduating from Stanford. He was fond of quoting the 19th-century British poet, historian and member of Parliament Thomas Babington Macaulay who wrote that copyright was “a tax on readers for the purpose of giving a bounty to writers.’’

Breyer also understood that the application of American jurisprudence needed to be flexible to reflect contemporary circumstances, even those that lawmakers may never have envisioned.

“If I’m applying the First Amendment, I have to apply it to a world where there’s an internet, and there’s Facebook, and there are movies like… ‘The Social Network,’ which I couldn’t even understand,’’ he told students in 2010 at a commencement address at Vanderbilt Law School.

Much fun is made of old people’s tech ignorance, particularly Supreme Court justices. Breyer himself once said he had no idea what kind of smart phone he owned because he could never remember the password to open it.

Yet Breyer immersed himself in the world of technology and spent a career trying to apply centuries-old principles of copyright law to a technology that didn’t exist when he was born.

As far back as 1970 — a decade and a half before Apple introduced the first personal computer — Breyer wrote in the Harvard Law Review that applying strict copyright codes to computer software might stifle the advancement of technology.

“The law should allow individuals and small groups to store copyrighted material in computers and to use it for research purposes without obtaining permission from the copyright owner,’’ he wrote.

Breyer’s seminal article “The Uneasy Case for Copyright’’ shows remarkable foresight as well as how little was understood about the future.

At one point, he wrote of the possibility of computer printers — not ones that might allow individuals to print their own copies of copyrighted material, but ones capable of producing “printing plates directly from a typed manuscript, eliminating the cost of retyping copy on … a linotype machine.’’

Nonetheless, he concluded “computer programs should not receive copyright protection at the present time.’’

Such thinking was evident 40 years later in the Supreme Court’s 2021 decision rejecting Oracle’s claim that Google had unfairly copied 11,500 lines of computer coding in creating its Android platform.

Writing for the majority, Breyer distinguished between “implementing’’ and “declaring codes” to determine that Google’s use of Oracle’s JavaScript program was “fair use.’’

“Just as fair use distinguishes among books and films, which are indisputably subjects of copyright, so too must it draw lines among computer programs,’’ he wrote, displaying a knowledge of computer programming that would humble most law school graduates.

Breyer said it took him nearly a year to write the opinion in the Google case and compared his study of computer lingo to learning Latvian.

San Francisco has changed as much as any place during Breyer’s life. Lowell (for the moment) no longer admits students based on tests. Camp Mather has been closed for two years due to a global pandemic. His childhood home on Kittredge Terrace, valued at $12,000 in the 1940 census, is now worth over $2 million.

Breyer’s ability to apply traditional concepts to evolving circumstances has enshrined his place in legal history. And his San Francisco story reminds us how the future is often beyond our wildest imagination.

Marc Sandalow is associate director of the University of California’s Washington Center. He has written about Bay Area issues from Washington for nearly 30 years.