« Divisiveness, Oppression, and the Impossibiity of Principled Opinions | Main | The End of Consensus on Prohibiting Sectarian Discrimination »
Monday, June 27, 2005
Supreme Court Sows Uncertainty
Grokster | Posted by Fred von Lohmann at 04:07 PM
[Hello all, I'm Fred von Lohmann, staff attorney with EFF and counsel to StreamCast Networks, one of the two defendants in today's MGM v. Grokster ruling. The following also appears on EFF's Deep Links weblog. On the EFF homepage, you'll also find audio of our press conference this morning, along with Public Knowledge, representatives of Grokster, and the Consumer Electronics Association.]
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. Whether or not today's ruling unleashes new litigation against innovators, it will have no effect on the tens of millions of Americans who continue to use P2P file-sharing software, nor will it deter off-shore programmers living beyond the reach of US copyright laws. Hilary Rosen is right: giving music fans a compelling legitimate alternative, whether through collective licensing or simply competing with free, is the only solution.
- No Matter What, We've Won: There is reason to celebrate in today's ruling. It could have been much worse. As many have noted, the Court rejected many of the more extreme positions that the entertainment industry argued for in the courts below. As discussed below, the Court left intact several important legal bulwarks for innovators. While the Court didn't shore them up, it also didn't tear them down.
- Main Event #1: Sony Betamax. The Supreme Court left the Betamax defense intact by essentially refusing to say anything about it, although the sniping between the two concurrences suggests that a future battle may be coming. Neither side can declare total victory on this score and future cases are probably inevitable (especially where well-advised companies use today's decision as a roadmap for avoiding any hint of inducement).
- Main Event #2: Vicarious Liability. The Court chose to punt on this issue, choosing to base its decision on inducement instead of addressing the entertainment industry's "you could have designed it differently" theory of vicarious liability. The Court's exposition of inducement, however, suggests that it would be hostile to any theory that imposed a free-floating obligation to redesign (without any evidence of inducement) on technologists. That's good news.
- Main Event #3: Inducement. The Court conjured a new form of indirect copyright liability, importing inducement from patent law. Lawyers will be reading the tea leaves here for years to come, trying to divine the precise boundaries of this new form of copyright liability (and, contrary to what the patent lawyers will tell you, patent precedents don't resolve all the questions). The opinion suggests that copyright plaintiffs must show some overt act of inducement; the design and distribution (along with the usual incidents of distribution) of a product, by itself, are not enough. But the Court's opinion may lead lower courts to conclude that once you find an overt act, however small, virtually everything else becomes relevant to divine your "intent." That would be a bonanza for entertainment lawyers eager to foist huge legal costs on defendants. Reminiscent, in some ways, of the securities class actions that have bedeviled high tech companies for years.
More about the details of the Court's inducement theory soon.
Trackback Pings
TrackBack URL for this entry:
http://www.scotusblog.com/movabletype/mt-tb.cgi/616
Listed below are links to weblogs that reference Supreme Court Sows Uncertainty:
» At The Court from Law Dork
With sentences like this one from Lyle Denniston, I'd stay around if I were the Chief just to watch everyone have continually more and more trouble moving forward from day to day: "There was no word by early afternoon about... [Read More]
Tracked on June 27, 2005 04:17 PM
» adipex inc from facts about adipex
adipex p weight loss stories adipex p adipex medicine buy adipex fre doctor rx adipex information on adipex adipex dosage adipex generic adipex without perscription cheap canadian adipex buy cheap adipex diet pill adipex cause death [Read More]
Tracked on July 25, 2005 02:02 AM
» interracial cuckold movies from free interracial sex stories
interracial bisexual interracial ebony free interracial sex movies on real player alt interracial interracial romance stories interracial relationships america interracial sexcom interracial cuckold cuckold alisha interracial jessica interracial interr... [Read More]
Tracked on August 23, 2005 09:38 AM
» health care naming from health care naming
health care naming [Read More]
Tracked on August 23, 2005 02:21 PM
» party poker rakeback from party poker rakeback
You can also check some information in the field of poker party rules [Read More]
Tracked on September 1, 2005 10:50 PM
» clitoris women from biology female clitoris
where is the clitoris located at diagrams free large cock clitoris picture color clitoris free web sites for enlarge clitoris pic gallery girls the beauty of the clitoris how can you tell when the clitoris is popping out clitoris and penis big size pic... [Read More]
Tracked on September 9, 2005 02:15 AM
» drinking and viagra from free generic viagra
what is the normal dosage of viagra discount viagra europe viagra online sample of viagra viagra alternatives best price for generic viagra get viagra cheapest viagra free generic viagra viagra online discount viagra suppliers viagra by mail [Read More]
Tracked on September 9, 2005 04:56 PM
» PARTY POKER from PARTY POKER
Take your time to visit some helpful info in the field of party poker searches free player free texas holdem poker [Read More]
Tracked on September 11, 2005 11:39 PM
» ancient chinese literature from quest theme literature archetype
philippine literature math literature list italian renaissance literature censorship in literature essay sample literature analysis literature box literature activities literature lessons women in literature literature activities gothic period literatu... [Read More]
Tracked on September 21, 2005 02:42 PM
» casino play poker video from casino play poker video
Take your time to take a look at some information on Online poker games free [Read More]
Tracked on September 23, 2005 07:12 PM
» childrens literature humor stories from elements of gothic literature
literature analysis what is literature search gender roles in childrens literature african american literature polar express activities for literature online spanish literature degree literature review and research question with hypothesis literature r... [Read More]
Tracked on September 24, 2005 06:22 AM
» american literature from german literature
evidencebased literature review proposal teaching problem solving through children literature dreams literature art and literature forums motif examples in literature student examples of a literature review multicultural young adult literature bdsm li... [Read More]
Tracked on September 24, 2005 08:21 AM
» car sales literature from poe contributions to literature
lindas link to literature elizabethan literature literature sorter adult literature tolkien on literature image literature film mcsearch definition literature synthesis in epidemiology high school literature questions activities for teaching british li... [Read More]
Tracked on September 26, 2005 06:14 AM
» writing review of literature from literature rackwholesale
hatchet literature circle literature in the elizabethan period modernism in american literature tone in literature read book reviews realism literature childrens literature with russian themes the language of literature literature lesson plan literatur... [Read More]
Tracked on September 26, 2005 07:49 AM
» british literature lesson plan from norton anthology of american literature
children literature writing review of literature victorian literature irish literature polar express activities for literature memory in literature history of contemporary literature australian literature history anglo saxon literature auto literature ... [Read More]
Tracked on September 27, 2005 07:25 AM
» jessica alba breast from jessica alba breast
jessica alba breast [Read More]
Tracked on September 28, 2005 11:43 PM
» viagra alternatives from viagra alternatives
viagra alternatives [Read More]
Tracked on September 30, 2005 07:50 AM
» Betty White from Donald Harris
anal pleasure
[Read More]
Tracked on April 8, 2006 03:05 AM
» Betty White from Donald Harris
New interesting theme
[Read More]
Tracked on April 9, 2006 07:55 AM
» http://www./.html from
[Read More]
Tracked on August 11, 2006 12:07 PM
» Marazzi from marazzi
Marazzi prin Omnitechgroup [Read More]
Tracked on September 11, 2006 02:56 AM
» Breast+Enhancement from Breast+Enhancement
+I+awoke+one+morning+and+found+myself+famous.+ [Read More]
Tracked on September 13, 2006 10:49 PM
» 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 09:00 AM
» pornoriviste mp3 from pornoriviste mp3
pornoriviste mp3 [Read More]
Tracked on November 25, 2006 11:16 AM
» rape art from rape art
rape art [Read More]
Tracked on December 17, 2006 01:55 AM
» stories of rape and torture from stories of rape and torture
stories of rape and torture [Read More]
Tracked on December 20, 2006 02:58 PM
» sfondo amore from sfondo amore
sfondo amore [Read More]
Tracked on January 4, 2007 09:28 AM
» home schooling curriculum from home schooling curriculum
home schooling curriculum [Read More]
Tracked on January 21, 2007 05:36 AM
» poker bet from poker bet
[Read More]
Tracked on January 21, 2007 09:29 AM
» business directory from business directory
business directory [Read More]
Tracked on January 21, 2007 09:50 AM
» impianto illuminazione from impianto illuminazione
impianto illuminazione [Read More]
Tracked on January 22, 2007 11:56 AM
» rape comix from rape comix
rape comix [Read More]
Tracked on March 8, 2007 06:49 PM
» man rape from man rape
man rape [Read More]
Tracked on March 17, 2007 03:00 AM
» Gang Rape from Gang Rape
Gang Rape [Read More]
Tracked on March 18, 2007 03:50 AM
» improve television reception from improve television reception
improve television reception [Read More]
Tracked on April 1, 2007 04:29 PM
» replacement diploma from replacement diploma
replacement diploma [Read More]
Tracked on April 2, 2007 01:50 AM
» casa loma toronto from casa loma toronto
casa loma toronto [Read More]
Tracked on April 3, 2007 11:12 AM
» Incest porn from Incest porn
Incest porn [Read More]
Tracked on April 12, 2007 05:17 AM
» Rape from Rape
Rape [Read More]
Tracked on April 14, 2007 02:50 PM
» Income Tax from Income Tax
Hi. I think you have a really nice blog. [Read More]
Tracked on April 23, 2007 12:12 PM
» Bass Fishing Gear from Bass Fishing Gear
Are you sure? [Read More]
Tracked on April 23, 2007 01:48 PM
» iqair room air cleaners from iqair room air cleaners
iqair room air cleaners [Read More]
Tracked on April 28, 2007 06:47 AM
» dental implants roseville from dental implants roseville
dental implants roseville [Read More]
Tracked on April 29, 2007 07:51 AM
» forklift safety video osha from forklift safety video osha
forklift safety video osha [Read More]
Tracked on May 2, 2007 02:51 AM
» Rape from Rape
Rape [Read More]
Tracked on May 2, 2007 12:22 PM
» Rape videos from Rape videos
Rape videos [Read More]
Tracked on May 6, 2007 06:47 PM
» laminate floor production process from laminate floor production process
laminate floor production process [Read More]
Tracked on May 9, 2007 12:38 AM
» gratis from gratis
gratis [Read More]
Tracked on May 13, 2007 05:19 PM
» herb gardening from herb gardening
shit-happens 4029811 herb gardening intro [Read More]
Tracked on June 19, 2007 01:17 PM
» eddie bauer musical rocking bassinet from eddie bauer musical rocking bassinet
eddie bauer musical rocking bassinet [Read More]
Tracked on July 28, 2007 03:31 PM
» Cheapest tramadol. from Tramadol.
Tramadol online. Medlineplus drug information tramadol and. Tramadol. [Read More]
Tracked on December 3, 2007 11:26 AM
» baby national guard camoflauge from lascal kiddy guard disappearing baby safety gate
david guetta and baby when the light free baby shower cards [Read More]
Tracked on May 21, 2008 01:43 AM
» globe o cross stunt show from launch of the lhc atlas
atlas switch motor montana groundwater atlas [Read More]
Tracked on May 21, 2008 02:08 AM
» hvac course from liquid crystal panel cleaning equipment
instant adhesives air compressors kaeser south carolina [Read More]
Tracked on May 21, 2008 02:53 AM
» Laminate & Hardwood Flooring from Laminate & Hardwood Flooring
Hardwood flooring installation can be an arduous and time consuming job, but if you feel comfortable giving it a try, you may potentially end up saving quite a bit of money. [Read More]
Tracked on December 3, 2008 12:38 AM