« More on Justice Breyer, Partly on Divisiveness | Main | Proof of secular purpose and adverse possession of the public square »
Monday, June 27, 2005
Lichtman: A Hollow Victory
Grokster | Posted by Douglas Lichtman at 11:49 AM
MGM won on paper today, but my first reading of the opinion makes me wonder whether the victory will have any bite outside of this specific litigation. Intent-based standards, after all, are among the easiest to avoid. Just keep your message clear -- tell everyone, and I mean everyone, that your technology is designed to facilitate only authorized exchange -- and you have no risk of accountability.
That is not the standard I was hoping for. As I have urged elsewhere, I would have allowed liability to be based exclusively on objective evidence, for example a party's failure to alter its technology in a way that would significantly reduce infringing behavior without significantly interfering with legitimate.
The Court closed the door on this sort of inquiry, however. As the opinion makes clear, evidence of unreasonable product design can be considered only if there is also smoking-gun evidence of intent. Indeed, even outlandish design desicions are off limits without the relevant precursor.
Surely the Court realizes that well-advised bad actors rarely leave smoking guns lying about. Hence the victory here looks hollow, and in my view the legal rule seems poorly crafted.
Trackback Pings
TrackBack URL for this entry:
http://www.scotusblog.com/movabletype/mt-tb.cgi/577
Listed below are links to weblogs that reference Lichtman: A Hollow Victory:
» Continuing discussion of Grokster from Tech Law Advisor
Patry on MGM v. Grokster: "I don't know about others, but I view the Court as having punted: they decided mainly an issue that wasn't in front of them (inducement)... [Read More]
Tracked on June 27, 2005 03:12 PM
» Fred von Lohmann on How to Read Grokster (Again) from Copyfight
This was Fred von Lohmann's thinking before the Grokster ruling. Here's Fred's thinking now: Let's measure today's opinion against the chief issues mentioned in the "Grokster Reader's Guide" last week. It's not About P2P: It's still not about P2P. Whet... [Read More]
Tracked on June 27, 2005 04:21 PM
» Supreme Court Sows Uncertainty with Grokster case. from Privacy Digest: Privacy News (Civil Rights, Encryption, Free Speech, Cryptography)
Supreme Court Sows Uncertainty . [Read More]
Tracked on June 29, 2005 08:50 AM
» the site from acne baby betting bingo bonsai
Fantastic site [Read More]
Tracked on July 4, 2005 09:29 PM
» the site from acne baby bingo bonsai carauction
Cra cha tee da da salma [Read More]
Tracked on July 5, 2005 10:37 PM
» texas holdem from texas holdem
You may find it interesting to check some helpful info dedicated to free rules for poker poker hand [Read More]
Tracked on July 26, 2005 01:39 PM
» fantasy art from fantasy art
art historymodern artart printafrican art [Read More]
Tracked on July 28, 2005 11:45 PM
» setting up online poker from setting up online poker
In your free time, visit some relevant pages on free online poker play free poker for fun [Read More]
Tracked on July 30, 2005 09:10 AM
» 3 card poker online from 3 card poker online
You may find it interesting to visit the sites in the field of texas hold em sites houston texas holdem [Read More]
Tracked on July 30, 2005 10:02 PM
» gambling site from gambling site
gambling site [Read More]
Tracked on July 31, 2005 03:41 PM
» flight school from flight school
flight school [Read More]
Tracked on August 1, 2005 03:04 PM
» buy ultram online from
tramadol hydrochloride lowest price tramadol buy tramadol prescription tramadol cheap tramadol buy tramadol onli... [Read More]
Tracked on August 2, 2005 08:33 AM
» law school from law school
law school [Read More]
Tracked on August 2, 2005 10:49 AM
» civil law from civil law
civil law [Read More]
Tracked on August 2, 2005 11:22 AM
» carisoprodol side from carisoprodol side
carisoprodol side [Read More]
Tracked on August 2, 2005 12:10 PM
» girl tattoo from girl tattoo
girl tattoo [Read More]
Tracked on August 2, 2005 11:21 PM
» clearwater carpet dealer from clearwater carpet dealer
austin carpet dealer in rug txcarpet dealer in clearwater fl [Read More]
Tracked on August 4, 2005 04:06 AM
» carpet dealer houston rug from carpet dealer houston rug
carpet dealer in clearwater flcarpet dealer fl tampa [Read More]
Tracked on August 4, 2005 05:00 AM
» tattoo from tattoo
tattoo [Read More]
Tracked on August 5, 2005 11:57 AM
» rome travel from rome travel
rome travel [Read More]
Tracked on August 5, 2005 04:43 PM
» cheap carisoprodol from cheap carisoprodol
cheap carisoprodol [Read More]
Tracked on August 6, 2005 01:52 AM
» minktell from cdr clock digicam ds dvdplayer
minktell [Read More]
Tracked on August 6, 2005 01:59 AM
» tattoo flash from tattoo flash
tattoo flash [Read More]
Tracked on August 6, 2005 03:07 AM
» tattoo flash from tattoo flash
tattoo flash [Read More]
Tracked on August 6, 2005 03:10 AM
» tattoo from tattoo
tattoo [Read More]
Tracked on August 6, 2005 04:20 AM
» off shore wagering from off shore wagering
off shore wagering [Read More]
Tracked on August 6, 2005 08:08 AM
» online casino from online casino
online casino [Read More]
Tracked on August 6, 2005 09:07 AM
» online casino gambling from online casino gambling
online casino gambling [Read More]
Tracked on August 6, 2005 09:53 AM
» airfare sidestep from airfare sidestep
airfare sidestep [Read More]
Tracked on August 6, 2005 03:37 PM
» minktell from airline antivirus anxiety arthritis
minktell [Read More]
Tracked on August 6, 2005 05:51 PM
» poker card from poker card
poker card [Read More]
Tracked on August 7, 2005 03:45 AM
» data cables from data cables
data cables [Read More]
Tracked on August 7, 2005 12:00 PM
» data cables from data cables
data cables [Read More]
Tracked on August 7, 2005 12:00 PM
» poker online games from poker online games
You may find it interesting to take a look at the sites dedicated to online poker instruction [Read More]
Tracked on August 8, 2005 03:21 PM
» online poker from online poker
online poker [Read More]
Tracked on August 9, 2005 01:07 PM
» online poker from online poker
online poker [Read More]
Tracked on August 9, 2005 01:07 PM
» carisoprodol cheap online from carisoprodol cheap online
carisoprodol soma
carisoprodol order
carisoprodol order soma [Read More]
Tracked on August 10, 2005 03:13 AM
» carisoprodol cheap online from carisoprodol cheap online
carisoprodol soma
carisoprodol order
carisoprodol order soma [Read More]
Tracked on August 10, 2005 03:13 AM
» carisoprodol information from carisoprodol information
carisoprodol picture
buying carisoprodol
carisoprodol sale
[Read More]
Tracked on August 10, 2005 05:47 AM
» carisoprodol information from carisoprodol information
carisoprodol picture
buying carisoprodol
carisoprodol sale
[Read More]
Tracked on August 10, 2005 05:47 AM
» tattoo design from tattoo design
tattoo design [Read More]
Tracked on August 10, 2005 09:36 AM
» tattoo design from tattoo design
tattoo design [Read More]
Tracked on August 10, 2005 09:36 AM
» discount from discount
[Read More]
Tracked on August 10, 2005 09:50 AM
» discount from discount
[Read More]
Tracked on August 10, 2005 09:50 AM
» online debt consolidation from online debt consolidation
online debt consolidation [Read More]
Tracked on August 10, 2005 04:02 PM
» antonio carpet dealer san tx from antonio carpet dealer san tx
shaw carpet dealer
berber carpet dealer
butler carpet dea... [Read More]
Tracked on August 11, 2005 04:03 AM
» antonio carpet dealer san tx from antonio carpet dealer san tx
shaw carpet dealer
berber carpet dealer
butler carpet dea... [Read More]
Tracked on August 11, 2005 04:03 AM
» theatre ticket from theatre ticket
theatre ticket [Read More]
Tracked on August 12, 2005 05:23 PM
» theatre ticket from theatre ticket
theatre ticket [Read More]
Tracked on August 12, 2005 05:23 PM
» rome from rome
city rome [Read More]
Tracked on August 12, 2005 05:41 PM
» casino from casino
casino [Read More]
Tracked on August 13, 2005 08:55 AM
» casino from casino
casino [Read More]
Tracked on August 13, 2005 08:55 AM
» online poker from online poker
online poker [Read More]
Tracked on August 13, 2005 09:04 AM
» online poker from online poker
online poker [Read More]
Tracked on August 13, 2005 09:04 AM
» alcoholism picture from alcoholism picture
alcoholism addiction treatment
alcoholism and divorce
[Read More]
Tracked on August 15, 2005 01:50 AM
» alcoholism picture from alcoholism picture
alcoholism addiction treatment
alcoholism and divorce
[Read More]
Tracked on August 15, 2005 01:50 AM
» online card game from online card game
casino card game
baccarat card game
card game
[Read More]
Tracked on August 16, 2005 05:18 AM
» online card game from online card game
casino card game
baccarat card game
card game
[Read More]
Tracked on August 16, 2005 05:18 AM
» slot machines from slot machines
Please visit some information about roulette casino [Read More]
Tracked on August 17, 2005 06:25 AM
» online casino from online casino
online casino gambling
best online casino
online casino game
[Read More]
Tracked on August 18, 2005 12:44 AM
» online casino from online casino
online casino gambling
best online casino
online casino game
[Read More]
Tracked on August 18, 2005 12:44 AM
» online casino from online casino
online casino gambling sports betting
virtual online casino gambling baccarat
[Read More]
Tracked on August 18, 2005 01:52 AM
» online casino from online casino
online casino gambling sports betting
virtual online casino gambling baccarat
[Read More]
Tracked on August 18, 2005 01:52 AM
» Home Location MSN ringtones from MSN Blog
Wydawnictwo i Ksiegarnia UMK. ... The Nicolaus Copernicus University Press. ringtones ringtones ringtones [Read More]
Tracked on August 21, 2005 04:42 PM
» texas holdem poker demo online from texas holdem poker demo online
In your free time, visit some information about Texas Holdem Poker Free [Read More]
Tracked on August 22, 2005 01:37 AM
» acyclovir cheap from acyclovir cheap
acyclovirchronic fatigue syndrome
acyclovir desk physician reference
[Read More]
Tracked on August 22, 2005 02:08 AM
» acyclovir cheap from acyclovir cheap
acyclovirchronic fatigue syndrome
acyclovir desk physician reference
[Read More]
Tracked on August 22, 2005 02:09 AM
» poker games from poker games
You can also visit the pages about online poker poker party poker [Read More]
Tracked on August 22, 2005 09:23 AM
» discount from discount
discount [Read More]
Tracked on August 22, 2005 03:11 PM
» thailand from thailand
thailand [Read More]
Tracked on August 24, 2005 12:07 PM
» online casino from online casino
online casino betting
uk online casino
best online casi... [Read More]
Tracked on August 25, 2005 12:43 AM
» online casino from online casino
online casino betting
uk online casino
best online casi... [Read More]
Tracked on August 25, 2005 12:43 AM
» celebrity photo from celebrity photo
celebrity photo [Read More]
Tracked on August 25, 2005 12:28 PM
» teen lesbians from
teen thongs topples teens in thongs teen porn teen girls kissing naked teens teen fuck [Read More]
Tracked on August 26, 2005 02:57 AM
» bizarre sex from
domestic violence nipple torture rape sex pussy torture tit torture teen rape [Read More]
Tracked on August 26, 2005 02:57 AM
» thailand from thailand
thailand [Read More]
Tracked on August 26, 2005 03:15 PM
» howard stern heather party poker from howard stern heather party poker
In your free time, check out some relevant pages about multiplayer poker online [Read More]
Tracked on August 28, 2005 07:14 PM
» mike in brazil from mike in brazil
Interesting.... nice [Read More]
Tracked on August 28, 2005 08:20 PM
» Milf Hunter from Milf Hunter
Microsoft wants to buy google? [Read More]
Tracked on August 29, 2005 06:32 PM
» Big Naturals from Big Naturals
I like your site! [Read More]
Tracked on August 29, 2005 06:34 PM
» Pacific Poker from Pacific Poker
The future of internet marketing [Read More]
Tracked on August 29, 2005 07:31 PM
» Gambling Online from Gambling Online
The new way of communication [Read More]
Tracked on August 29, 2005 07:47 PM
» Milf from Milf
The most important thing [Read More]
Tracked on September 2, 2005 12:40 PM
» Cum Fiesta from Cum Fiesta
To be honest [Read More]
Tracked on September 2, 2005 12:47 PM
» Cumfiesta from Cumfiesta
I want to tell you one thing... [Read More]
Tracked on September 2, 2005 12:50 PM
» Casino Gaming from Casino Gaming
That is really cool [Read More]
Tracked on September 2, 2005 01:30 PM
» Porno free animal video from Adult animal porn
Sex fuck mothers galleries Gay incestbrother Generic uk viagra Viagra samples free consultation [Read More]
Tracked on September 4, 2005 12:10 PM
» Alien erotica cartoon from Cartoon fantasy
Movies preview hentai Free sex chinese cartoon Family sex pics gallery Free mom fucking sondownloads [Read More]
Tracked on September 4, 2005 06:40 PM
» free ringtones from blogeers comunity
The batteries, previewd at CES earlier
free ringtones [Read More]
Tracked on September 5, 2005 05:10 AM
» tanning bed from bed
tanning bed [Read More]
Tracked on September 10, 2005 06:26 AM
» Texas Holdem Poker from Texas Holdem Poker
NY party seeks to remove member [Read More]
Tracked on September 10, 2005 04:53 PM
» Cum Fiesta from Cum Fiesta
Prison abuse: Soldier cleared [Read More]
Tracked on September 10, 2005 04:58 PM
» Street Blowjobs from Street Blowjobs
Officials: Guard Deployment Hurt Response [Read More]
Tracked on September 10, 2005 05:03 PM
» Hairy Pussy from Hairy Pussy
I dont believe you [Read More]
Tracked on September 10, 2005 05:04 PM
» Mega Cock Cravers from Mega Cock Cravers
Reports from the Idea Industry [Read More]
Tracked on September 10, 2005 05:04 PM
» Pacific Poker from Pacific Poker
North Korea Nuclear Talks to Resume September 13 [Read More]
Tracked on September 10, 2005 05:05 PM
» we live together from we live together
Ophelia Weakens As It Begins To Move Away [Read More]
Tracked on September 10, 2005 05:05 PM
» Cumfiesta from Cumfiesta
Have fun [Read More]
Tracked on September 10, 2005 05:05 PM
» Casino Gaming from Casino Gaming
I can hardly believe it [Read More]
Tracked on September 10, 2005 05:07 PM
» Gambling Online from Gambling Online
I dont believe you [Read More]
Tracked on September 10, 2005 05:08 PM
» dating from dating
Dating for lonely and not only [Read More]
Tracked on September 13, 2005 02:58 AM
» Cheap Pharmacy Online from Cheap Pharmacy Online
Coast Guard chief takes over relief effort [Read More]
Tracked on September 14, 2005 05:02 AM
» Cheap Generic Wellbutrin from Cheap Generic Wellbutrin
Thank You for Commenting [Read More]
Tracked on September 14, 2005 06:02 AM
» Cheap Generic Celebrex from Cheap Generic Celebrex
Report: Stroke, not poison killed Arafat [Read More]
Tracked on September 14, 2005 06:02 AM
» Cheap Generic Levitra from Cheap Generic Levitra
APEC FM's meeting discusses capital movement, aging economies [Read More]
Tracked on September 14, 2005 06:32 AM
» Cheap Generic Viagra from Cheap Generic Viagra
Second poll shows Merkel without majority [Read More]
Tracked on September 14, 2005 06:32 AM
» carisoprodol from carisoprodol
carisoprodol [Read More]
Tracked on September 14, 2005 08:39 AM
» carisoprodol from carisoprodol
carisoprodol [Read More]
Tracked on September 14, 2005 08:39 AM
» dating from dating
dating [Read More]
Tracked on September 14, 2005 08:50 AM
» Sex anime manga picture free from Cartoon sex picture simpsons
3d sex story father Hot dad and girl sex Indian son and mom porn Free mom fucking sons videos [Read More]
Tracked on September 17, 2005 08:27 PM
» Indian sex stories son with mom from Mom incest free vids
Extreme horse sample clips Free videos of man having sex with dog Fucking free mothers and sons Father daughter incest stori... [Read More]
Tracked on September 17, 2005 10:43 PM
» Free sample video clips of rape of women from Adult video trailers
Hentai cartoon69 Free video sextoons Mom and daughter porn videos for free Free xxx lesbains video free downloads [Read More]
Tracked on September 18, 2005 02:19 AM
» single dating from single dating
single dating [Read More]
Tracked on September 19, 2005 12:33 AM
» single dating from single dating
single dating [Read More]
Tracked on September 19, 2005 12:33 AM
» Online Casino Games from Online Casino Games
Man indicted for plotting to assasinate Bush [Read More]
Tracked on September 19, 2005 07:12 AM
» Internet Jackpot from Internet Jackpot
Japan post office's rural redoubt [Read More]
Tracked on September 19, 2005 07:22 AM
» Internet Roulette from Internet Roulette
Bad IDEA! [Read More]
Tracked on September 19, 2005 07:32 AM
» Internet Blakcjack from Internet Blakcjack
Report: Stroke, not poison killed Arafat [Read More]
Tracked on September 19, 2005 07:32 AM
» internet texas holdem poker from internet texas holdem poker
Second poll shows Merkel without majority [Read More]
Tracked on September 19, 2005 07:41 AM
» pacific poker from pacific poker
Try another way [Read More]
Tracked on September 19, 2005 07:41 AM
» Online Jackpot from Online Jackpot
New Orleans colleges face uncertain future [Read More]
Tracked on September 19, 2005 07:42 AM
» Internet Casino Gaming from Internet Casino Gaming
Election commission rejects rerun request in Egypt [Read More]
Tracked on September 19, 2005 07:52 AM
» Casino Gaming from Casino Gaming
Man indicted for plotting to assasinate Bush [Read More]
Tracked on September 19, 2005 08:12 AM
» party poker from party poker
Election commission rejects rerun request in Egypt [Read More]
Tracked on September 19, 2005 08:21 AM
» recreation vehicle insurance from recreation vehicle insurance
recreation vehicle insurance [Read More]
Tracked on September 20, 2005 12:23 AM
» renters insurance from renters insurance
renters insurance [Read More]
Tracked on September 20, 2005 12:25 AM
» tattoos from tattoos
tattoos [Read More]
Tracked on September 20, 2005 02:26 AM
» free texas hold em from free texas hold em
free texas hold em He remembered that he himself, when he sign'd first warehoused into hand-spaded enregister [Read More]
Tracked on September 20, 2005 08:02 AM
» online poker games from online poker games
Yanks back up pledge [Read More]
Tracked on September 20, 2005 09:06 AM
» free casino game from free casino game
Where America is going? [Read More]
Tracked on September 20, 2005 09:10 AM
» free online casinos from free online casinos
Winning Flight 93 Memorial Chosen [Read More]
Tracked on September 20, 2005 09:10 AM
» free poker online from free poker online
Scores of 'fighters' held in Iraq [Read More]
Tracked on September 20, 2005 09:20 AM
» tattoos from tattoos
tattoos [Read More]
Tracked on September 21, 2005 01:30 AM
» tattoos from tattoos
tattoos [Read More]
Tracked on September 21, 2005 01:30 AM
» tattoo designs from tattoo designs
tattoo designs [Read More]
Tracked on September 21, 2005 01:42 AM
» tattoo designs from tattoo designs
tattoo designs [Read More]
Tracked on September 21, 2005 01:42 AM
» cheap ticket from cheap ticket
cheap ticket [Read More]
Tracked on September 21, 2005 01:51 AM
» cheap ticket from cheap ticket
cheap ticket [Read More]
Tracked on September 21, 2005 01:51 AM
» Mikes Apartment from Mikes Apartment
Yanks back up pledge [Read More]
Tracked on September 21, 2005 01:05 PM
» Boys First Time from Boys First Time
Annan cleared of corruption [Read More]
Tracked on September 21, 2005 01:05 PM
» Captain Stabbin from Captain Stabbin
Mexican aid convoy heads into US [Read More]
Tracked on September 21, 2005 01:09 PM
» house plans from house plans
house plans [Read More]
Tracked on September 27, 2005 01:12 AM
» adaware from adaware
adaware [Read More]
Tracked on September 28, 2005 01:42 AM
» jessica simpson pics from jessica simpson
jessica simpson [Read More]
Tracked on September 28, 2005 04:37 AM
» play online strip poker from play online strip poker
In your free time, take a look at the sites in the field of free online and dice games poker [Read More]
Tracked on September 30, 2005 06:54 AM
» Dorothy Taylor from Christopher Anderson
asian [Read More]
Tracked on March 26, 2006 04:54 AM
» Neo
from Julia Kozyava
Hello! This is a very nice blog. Fantastic. Thank you very very much [Read More]
Tracked on April 2, 2006 11:08 AM
» casinos on line from casinos on line
Racontez-nous ce que vous aimez sur les événements de casinos on line et ce que vous pensez qui les rendrait encore mieux. Vous êtes la clef pour faire de votre expérience de casinos on line la meilleure qu... [Read More]
Tracked on April 24, 2006 02:32 AM
» casino roulette from casino roulette
Merci de votre intérêt pour le casino roulette. Nous sommes désolé de vous informer que notre site est temporairement inaccessible. Merci de votre intérêt pour le casino roulette. La page que vous recherche... [Read More]
Tracked on April 25, 2006 11:00 PM
» easy guitar tab maker pro - from easy guitar tab maker pro -
[Read More]
Tracked on May 30, 2006 11:43 AM
» online roulette from online roulette
Durant quatre décennies nous avons cru a la construction des relations a l'aide d'une interaction face a face, et une adhésion a une stratégie qualité de online roulette recommandés, des investissements qui ont fait leur prévue avec le temps. Merci de ... [Read More]
Tracked on July 16, 2006 07:41 PM
» hoodia from hoodia
++Both+oligarch+and+tyrant+mistrust+the+people%2C+and+therefore+deprive+them+of+their+arms.+ [Read More]
Tracked on September 14, 2006 07:48 AM
» HOODIA from HOODIA
++Our+democracy+is+but+a+name.+We+vote%3F+What+does+that+mean%3F+It+means+that+we+choose+between+two+bodies+of+real+ [Read More]
Tracked on September 14, 2006 08:48 AM
» Sharon Robinson from James Smith
live bestiality show
[Read More]
Tracked on November 21, 2006 05:48 PM
» prima casa agevolazione sardegna from prima casa agevolazione sardegna
prima casa agevolazione sardegna [Read More]
Tracked on November 25, 2006 10:01 AM
» novita dvd musicali from novita dvd musicali
novita dvd musicali [Read More]
Tracked on November 25, 2006 08:05 PM
» leviatano italiano riassunto stato hobbes from leviatano italiano riassunto stato hobbes
leviatano italiano riassunto stato hobbes [Read More]
Tracked on November 26, 2006 05:06 PM
» baltimore,md carrier freight ltl from baltimore,md carrier freight ltl
[Read More]
Tracked on December 5, 2006 01:47 AM
» bouquet cookie from bouquet cookie
bouquet cookie [Read More]
Tracked on January 22, 2007 12:02 PM
» marks & spencer baby clothing, united states from women advice anal sex
diary of girl during the american revolution [Read More]
Tracked on January 29, 2007 12:33 AM
» family incest from family incest
family incest [Read More]
Tracked on February 16, 2007 03:40 AM
» rape sex from rape sex
rape sex [Read More]
Tracked on February 16, 2007 09:38 PM
» rape sex from rape sex
rape sex [Read More]
Tracked on February 17, 2007 12:07 AM
» incest sex from incest sex
incest sex [Read More]
Tracked on March 27, 2007 11:04 AM
» Rape from Rape
Rape [Read More]
Tracked on April 6, 2007 02:43 PM
» Order accutane online. from Order accutane.
Order accutane online. [Read More]
Tracked on May 11, 2007 11:22 PM
» giovanni from giovanni
giovanni [Read More]
Tracked on May 12, 2007 04:12 PM
» jada smith from jada smith
shit-happens 1046733 jada smith co [Read More]
Tracked on June 14, 2007 10:02 PM
» forensic pathology from forensic pathology
shit-happens 1046733 Features of forensic pathology. [Read More]
Tracked on June 20, 2007 07:47 AM
» Hoodia Gordonii Plus » from Hoodia Gordonii Plus »
The normal everyday user would be under the impression that taking the time to gain websites on this matter is a waste of money. [Read More]
Tracked on October 8, 2007 07:57 PM
» Hoodia Gordonii Plus » from Hoodia Gordonii Plus »
The normal everyday user would be under the impression that taking the time to gain websites on this matter is a waste of money. [Read More]
Tracked on October 8, 2007 07:57 PM
Comments
--As I have urged elsewhere, I would have allowed liability to be based exclusively on objective evidence, for example a party's failure to alter its technology in a way that would significantly reduce infringing behavior without significantly interfering with legitimate.--
-----There is no such alteration.
It's either ineffective (filename/hash based) or overly intrusive (decoding to look for possible unstirred watermarks).-----
--The Court closed the door on this sort of inquiry, however. As the opinion makes clear, evidence of unreasonable product design can be considered only if there is also smoking-gun evidence of intent. Indeed, even outlandish design desicions are off limits without the relevant precursor.--
-----So a system designed to transfer data without looking at it (or the associated metadata like filenames, sizes, content hashes, etc.) would be considered "outlandish"?
What about FTP/HTTP server applications?
Posted by: Felix Deutsch at June 27, 2005 12:19 PM
I'm not so sure it's a hollow victory. A major concern by most was the effect this would have on innovation. For the larger file-sharing companies, litigation costs may be simply set aside. However, the smaller guys who usually do the truly innovative work can be blown out of the water by the RIAA.
Posted by: JMOORE at June 27, 2005 12:35 PM
I view the Court as having punted: they decided mainly an issue that wasn't in front of them (inducement) and didn't decide the one that was, the effect of Sony in the Internet era. I think this happened because neither the Ginsburg camp nor the Breyer camp could get two others to join. There were three for the picking, Souter, Scalia and Thomas. The two concurring camps have diametrically opposed views of the case, totalling six Justices. What does this do to the influence that the "unanimous" Souter opinion has? I think it greatly undermines it, resulting, as predicted in a muddied, murky future.
The Souter opinion does have a helpful slap down of the Ninth Circuit's bizarre "specific knowledge" requirement, and I think it is a good policy issue about the relationship of strong inducement evidence coupled with a staple article of commerce defense. But, I ask would the Betamax itself have met with Souter's approval? Recall Sony advertised that people could use it to copy their favorite movies, and we're talking here about librarying, not just time-shifting.
I need as most do, more time to sort through this, but my first read through is negative. We have two very different visions, Ginsburg's camp, which focuse more on what the hard evidence is now, and Breyer's, which focuses on the promise of technology, with three votes uncommitted to either camp. Regardless of whose side you favor, that kind of split is not helpful.
Posted by: William Patry at June 27, 2005 12:42 PM
I agree completely but would go further. This decision is a huge loss for MGM and the copyright industry and the language of the majority brooks virtually no exception. File sharing is here to stay and will force huge changes in the copyright industry, particularly the music biz. Follow my url for a more fulsome analysis.
Posted by: eric at June 27, 2005 12:43 PM
Forgot the url:
http://isleofmontecristo.blogspot.com/2005/06/mgm-v-grokster-no-04-480.html
Posted by: eric at June 27, 2005 12:51 PM