Tuesday, June 28, 2005
BitTorrent: The Next Main Event
Grokster | 01:27 PM | Edward Felten | Comments (2) | TrackBack
Few tears will be shed if Grokster and StreamCast are driven out of business as a result of the Supreme Court's decision. The companies are far from lovable, and their technology is yesterday's news anyway.
A much more important issue is what the rules will be for the next generation of technologies. Here the Court did not offer the clarity we might have hoped for, opting instead for what Tim Wu has described as the Miss Manners rule, under which vendors must avoid showing an unseemly interest in infringing uses of their products. This would appear to protect vendors who are honestly uninterested in forstering infringement, as well as those who are very interested but manage to hide it.
Lower courts will be left to apply the Grokster Court's inducement rule to the facts of other file distribution technologies. How far will lower courts go? Will they go too far?
The litmus test is BitTorrent. Here is a technology that is widely used for both infringing and non-infringing purposes, with infringement probably predominating today. And yet: It was originally created to support noninfringing sharing (of concert recordings, with permission). Its creator, Bram Cohen, seems interested only in noninfringing uses, and has said all the right things about infringement -- so consistently that one can only conclude he is sincere. BitTorrent is nicely engineered, offering novel benefits to infringing and noninfringing users alike. It is available for free, so there is no infringement-based business model. In short, BitTorrent looks like a clear example of the kind of dual-use technology that ought to pass the Court's active inducement test.
A court that followed the Grokster analysis closely would have to let BitTorrent off the hook. To do otherwise, I think, would be to institute a de facto predominant-use test, finding BitTorrent liable because too many of its users infringed. This might be dressed up as an inducement analysis, but it would be clear to everybody what was going on. Given the squishiness of the Grokster analysis, we can't rule this out.
So the stage is set for the next phase of the copyright/technology litigation war. The music and movie industries don't want to live in a world where BitTorrent is allowed to exist. The Supreme Court didn't give them enough yesterday to kill BitTorrent. So the industries' goal will be to stretch the Grokster rule, just as they tried to stretch the Sony rule before hitting a sandbar in the Grokster district court. We'll see a careful campaign of litigation against peer-to-peer services, trying to gradually stretch the noose of inducement liability until it fits around BitTorrent's neck. Failing that, we'll see a push to get Congress to codify (the industries' interepretation of) the Grokster rule.
The real winners, as usual, are the copyright lawyers.
Grokster = More Fair Use Cases?
Grokster | 12:26 PM | Fred von Lohmann | Comments (4) | TrackBack
One potential consequence of the MGM v. Grokster ruling may be an uptick in courts deciding fair use cases involving personal, noncommercial activities like "time-shifting" and "space-shifting."
A variety of new digital technologies are advertised and promoted for uses that the technology vendors believe to be fair uses. For example, Time Trax promotes its technology for recording satellite radio, Mercora for recording music from webcasts, and Sling Media for transmitting your TiVo'd TV shows to yourself over the internet. All maintain that these personal, noncommercial, nontranformative uses of copyrighted works fall within the scope of fair use. No court, however, has ever weighed in on these (or virtually any other) personal digital fair uses.
If these innovators are wrong on the fair use score, however, are they all liable for inducement? To put it another way, the Supreme Court's Grokster ruling may put "fair use technology companies" in the position of having to litigate, and win, the fair use question on behalf of their customers in order to resist an inducement charge. That's an expensive burden to foist on these companies.
Notice that this is different from the situation that technology companies face when addressing contributory infringement claims. According to the Supreme Court in the Betamax case, it is enough if any use satisfies the "capable of substantial noninfringing uses" test (whatever that may mean).
So what happens if you are sued for inducement, and a court decides that your advertised use is not actually a fair use? Do statutory damages wipe out both the product and the company?
In other words, is it inducement if you reasonably, but incorrectly, believed that the use for which you promoted your product was covered by fair use (or any other copyright exception)? Hopefully the courts (or Congress) will find or fashion a safe harbor like this. But till then, like a Russian doll, a nested fair use case may be discovered in many an inducement case.
Eschew Surplusage
Grokster | 12:17 PM | Fred von Lohmann | Comments (0) | TrackBack
And the award for concision goes to Harvard's (soon Oxford's) Prof. Jonathan Zittrain, speaking in today's New York Times: "Sony emerges not in tatters."
One Last Point on Distribution Channels (CEP)
Grokster | 10:15 AM | | Comments (1) | TrackBack
In case it wasn't clear from the original context, I'm not advocating distinguishing between the "device" and the "distribution channel" as the best theory—only as a tenable explanation of the different results in Sony and Grokster as things stand. In fact, I don't think it the best explanation, nor a particularly sound doctrine.Instead, I think we have the Deep Throat theory of copyright infringement: "follow the money." Note that all of the evidence cited against Grokster in Justice Souter's opinion—and assumed as being unfavorable to the software and service providers in Justice Ginsburg's and Justice Breyer's concurring opinions—concerns the mundane old business model. One could have transported this fact pattern back to the eighteenth century and come up with much the same result, because the operative facts are technology-independent. My first crack at a behavioral rule that emerges from Grokster is:
Technological advances for personal use may fall inside a safe harbor (such as, but not limited to, Sony), but distributing such a technological advance in a way that results in widespread direct infringement by others will not—especially (but not only) if you're trying to make money by doing so.
Monday, June 27, 2005
Clarifying Inducement: What's The Remedy?
Grokster | 09:30 PM | Derek Slater | Comments (0) | TrackBack
The Court also leaves open precisely what the remedy is if one is found to have actively induced infringement.
Here, too, the relationship to patent law may be relevant. In that context, the appropriate remedy has not included forbidding distribution of the defendant's technology. Rather, the remedies have prohibited the on-going, present misconduct found to be actively inducing infringement.
As Fred von Lohmann pointed out in the press conference today, alleged misconduct by the P2P companies took place years ago. What is there to enjoin today?
If past misconduct can be used to prove that present actions also amount to inducement, the potential harm to innovators would be substantial. Finding that an action from long ago amounts to inducement could open the door to claims about all subsequent activities.
The question of damages also is unclear. Statutory damages, which can be obtained regardless of actual harm in cases of copyright infringement, are not available in the patent context.
The DiMA et. al. brief similarly suggested that injunctions only apply to "the conduct that gave rise to liabilty, and should not prevent distribution of the technology itself." Furthermore, they argued that "Damages should be awarded only for harm directly caused by a company’s active encouragement."
[cross posted at Deep Links]
Clarifying Inducement: How Is Patent Law Relevant?
Grokster | 09:29 PM | Derek Slater | Comments (1) | TrackBack
Justice Stevens' Sony opinion discusses in some detail how patent law's "staple article of commerce" doctrine will be imported into copyright. The Grokster decision purports to import the active inducement standard from patent law, too. But it's unclear whether the Court actually has done so.
First, patent law requires a causal connection between the inducer and direct infringer. The inducement has to have actually influenced someone to commit an infringement. A court reading Grokster may be tempted to conclude, however, that a mere intent to encourage people to infringe may be enough. In particular, the Court focused on the P2P companies' decision to attract Napster users, without pointing to any evidence that Napster users actually migrated to either the Grokster or Morpheus systems.
Second, patent inducement has never taken failure to stop infringement or inaction as relevant to inducement. Instead, patent inducement requires "active" steps to specifically encourage infringement. Yet, a court might rule otherwise in the copyright context, as the Court today pointed to the P2P companies' failure to redesign their networks as relevant in light of initial evidence of intent to induce.
Third, patent inducement has not treated infringement's relationship to a company's business model as relevant. Again, the Court took this factor into account in light of other evidence of inducement.
A straightforward transplant of the patent inducement doctrine might have provided technologists with some insight into what it will mean for them in the copyright context. Unfortunately, the Court's decision muddies the import of patent caselaw.
[cross-posted at Deep Links]
Unavoidable Inducement?
Grokster | 09:16 PM | Derek Slater | Comments (0) | TrackBack
In light of the decision, some on the petitioners' side argue (once again) that the standard only targets "bad actors," not harming any legitimate businesses. However, in some ways, the decision may make it difficult for legitimate businesses to avoid inducement.
In the respondents' press conference, Grokster counsel Michael Page pointed out the perverse aspects of focusing on the P2P companies' attempting "to satisfy a known source of demand for copyright infringement." On the bright side, one could produce a tool that is used substantially for infringement but, because one did not intend to satisfy those users, one will not necessarily be liable. However, follow-on innovators who create similar products might be precluded; a court might conclude that they were attempting to satisfy that demand.
This problem for legitimate businesses runs even deeper. Ernest Miller provides a clever hypothetical:
"Suppose that there was ample evidence that Sony fully intended and explicitly encouraged Betamax users to infringe copyright with their videotape recorder (ads, internal emails, business plans). Consequently, under this standard, sales of the Betamax were shut down. What happens when VHS comes along? What will the makers of VHS have to do in order to avoid liability thanks to the bad actions of Sony? Should VHS be punished for going after the Betamax market? It would have been hard for VHS not to go after the Betamax market, that's where the buyers of VCRs are."Plus, once such intent to induce is found, other factors like product design could become relevant. In light of their attempting to satisfy demand of former Napster users, Grokster's and Streamcast's failure to monitor their users was relevant to inducement. Ernest continues his hypothetical with this question: "[Is it] evidence of illicit intent that the VHS was built without broadcast flag technology?"
Ernest covers more ground on this score here.
[cross-posted at Deep Links]
Deepening Disappointment
Grokster | 07:42 PM | | Comments (3) | TrackBack
I have been attending Supreme Court oral arguments in IP cases since 1983. Until somewhat recently, one could always predict the outcome by a vote or two. In the 1980s and very early 1990s, it was hit or miss how well the Court grasped the matter, though. What has changed for me is that I am always impressed by the Court's grasp of issues at oral argument, but am disappointed in the quality of the resulting decision. Grokster is the most disappointing of all. Like Lotus v. Borland, where the Court split 4-4 after a week (lazy!), Grokster raises to me serious issues about the ability of the Court to deal with hard copyright technnology issues. I had predicted after Grokster there were not 5 votes for either side and that proved true. But I didn't expect a phony 9-0 unanimous opinion, phony in the sense of tossing something out as if the Court had really done something. In my view they didn't. I'm happy they slapped down the Ninth Circuit's misreading of Sony. And I agree that the staple article of commerce doctrine shouldn't by itself insulate someone who actively induces infringement (although query whether the betamax would itself meet that test), but I find disturbing the real result of the case a 3-3 decision with three on the sidelines. The Court is only deciding 75 cases a year. It is shameful to me that 5 votes couldn't be found and that the Court instead took the easy way out
Bill Patry
Fear-Mongering
Grokster | 07:40 PM | Fred von Lohmann | Comments (0) | TrackBack
Today, during an interview on the News Hour with Jim Lehrer, lead counsel for the movie studios and record labels, Don Verrilli, accused me of "fear-mongering." While I suspect his barb may be something out of MPAA/RIAA talking points, others who I respect have suggested that the ruling in MGM v. Grokster is good news for technology companies.
Color me skeptical. As I see it, things are at least as bad as they've ever been, and maybe a bit worse.
As a technology company (and I'll incorporate by reference here the companies listed in the emerging technology company amicus brief, as well as the ones listed in Prof. Tushnet's post), you can still be sued for contributory infringement. Thanks to today's ruling, it's as hard as ever to determine whether the Sony Betamax ruling might protect you. Your lawyers are left to choose between the vacated Ninth Circuit MGM v. Grokster ruling and the Seventh Circuit Aimster dicta to divine the scope of the Betamax defense. And before you rely on the Ninth Circuit's Napster ruling, remember that was the foundation of the Ninth Circuit's now-vacated ruling in MGM v. Grokster.
You can also still be sued for vicarious liability. The Supreme Court refused to address this theory, so your lawyers have to parse the statements of the Ninth Circuit in Napster ("Turning a blind eye to detectable acts of infringement for the sake of profit gives rise to liability.") and the ambivalent dicta in Aimster ("How far the doctrine of vicarious liabiity extends is uncertain.").
Finally, you now have to wrestle with the new inducement theory, newly imported from patent law. Many lawyer hours will be spent reading the patent precedents, trying to figure out how you might be able to resist discovery into every facet of your business, as plaintiffs try to prove "intent."
I agree that things certainly could have been worse, from the technology sector's point of view. But I don't see how the Supreme Court ruling creates any new comfort for innovators on the contributory infringement or vicarious liability fronts.
Streams
Grokster | 05:59 PM | | Comments (1) | TrackBack
I can see I was too careless and shorthandish in my invocation of "authorized distribution channel." In the Betamax case, the presumption made by the Court (among others) was that in an archiving/timeshifting situation, Sony's machine was silently sitting between an otherwise-authorized over-the-air (or maybe cable) broadcast and the viewer. All it did was intercept and record the authorized broadcast; it was not a redistribution mechanism itself, except perhaps one-by-one as tapes get passed around the neighborhood (as in the short scene toward the beginning of Absolute Power).On the other hand, when recording from CDs, or DVDs, or whatever, the recording device is not part of the authorized distribution channel, even if it is merely sitting between the CD- or DVD-originated signal and the viewer. Once the CD or DVD is in hand, the authorized distribution channel has ended. I realize this is a rather inelegant description, but unfortunately I don't have a good graphic illustration available at the moment and my artistic skills are limited to stick figures, so a block diagram that probably won't survive HTML or browser incompatibility is about the best I can do:
broadcast signal >>>>>> {VCR} >>>>>> viewer
CD/DVD >>>>>> viewer's purchase ----- {VCR} ----- viewer
where the >>>>>> represent a distribution channel, and the ----- represent only a signal converting to human-recognizable form.I hope that's both clearer and more-convincing… but I'll settle for one out of two at this stage.
If Someone Asks You About BrandX...
Grokster | 04:56 PM | Susan Crawford | Comments (0) | TrackBack
If someone asks you what the Supreme Court thinks about the internet today, you've got a couple of responses.
1. In Grokster, the Court seems to understand that the case before it isn't just about P2P, and that the development of technology is really at issue. It doesn't want to let one industry -- the content industry -- use its statutory copyright monopoly to control the growth of another industry. On the other hand, the Court also recognizes that going after individual filesharers is very difficult, and that it may be necessary to go after intermediaries where sufficient evidence of intent is present. (This could be called the "There Must Be Liability In Here Somewhere" argument.) Result: some risk of liability for copyright infringement by technology providers, and a roadmap for what evidence is relevant when those cases come up.
2. In BrandX, the Court takes an entirely different approach. Using homespun analogies to pizza and dogs, and based on some fundamental misunderstandings about technology, the Court defers to the FCC's determinations about internet services. (This could be called the "This is Really Hard And We Want Out" tack.) Result: unfettered discretion lodged in the FCC to do what it wants with all internet services.
Now, the BrandX case is about a classification question. Should cable modem services be classified as "telecommunications services" or "information services"? If cable modem internet access is a telecommunications service, then many common-carrier obligations kick in -- like the obligation to allow others to plug into your network, to charge only set rates, and to contribute to the costs of rural telephone systems. The FCC didn't want to impose all of those costs on the cable industry, and so they said that cable internet access is really an "information service." This means that the FCC can apply "social policies" to the service (which can be very onerous and costly -- just as costly as the common-carrier rules), but won't set prices or require interconnection.
The problem with this classification by the FCC is that the statutory definition of "information service" doesn't fit with what internet access actually is. Information services are supposed to be things that generate, acquire, store, transform, process, retrieve, or make available information across telecommunications connections. The FCC reasoned that cable modem service is an information service because it gives people the ability to manipulate information using the internet across high-speed telecommunications. But that's not really right. Cable modem service allows people to reach online information, but doesn't necessarily allow them to manipulate it.
Your browser software allows you to see graphical online pages. Your email program allows you to receive and send email. Your IM client allows you to chat with friends. None of these things are necessarily provided by your cable service company. The 1996 telecom act, which contained these definitions, didn't foresee what the internet would become or how it would be used.
The Court defers to the FCC's classification, and along the way drops some very powerful dicta that gets ahead of the rewrite of the telecom act that is now in progress. Federal telecommunications policy, the Court says, should be set by the Commission. Everything accessed online is an information service. The Court says "the Commission has jurisdiction to impose additional regulatory obligations [on information service providers] under its Title I ancillary jurisdiction to regulate interstate and foreign communications."
The opinion has no limiting principles. The FCC can call anything that processes information an "information service," including any application you can think of. And it can impose any rules it wants to on that information service. We'll be relying on the Commission's self-restraint from now on.
That should be good cocktail-party banter.
[Cross-posted to Susan Crawford blog]
More questions than answers
Grokster | 04:24 PM | Rebecca Tushnet | Comments (4) | TrackBack
My name is Rebecca Tushnet. I teach at the Georgetown University School of Law. While I was not involved in Grokster, I do have a clear bias: Justice Souter, for whom I clerked, is the very model of a thoughtful, committed and careful jurist, and thus I am inclined to support any proposition he endorses.
That said, I am concerned that not every court is as careful as Justice Souter – this was a problem with his opinion in Campbell v. Acuff-Rose, which quite clearly says that satire can be fair use (though it has comparatively less advantage in the fair use analysis than parody does) but which has widely been overread to say that parodies win fair use defenses, but satires don’t. I fear that similar uncertainties will follow the Grokster ruling. In fairness, though, I can’t imagine a plausible majority opinion that wouldn’t leave many thorny questions.
The previous posts have made a number of excellent points which I’ll try not to reiterate, though I adore Kathleen Sullivan’s image of “strangling little iPods in their cradles.” I don’t quite get Charlie Petit’s idea that the Betamax involved “authorized source material and authorized distribution channels” whereas Grokster doesn’t. Except for unreleased pilots such as “Global Frequency” and bootlegs, the music and TV shows available through peer-to-peer networks came from authorized source material and authorized distribution channels (CD stores and broadcasts). Then they got moved to forms the copyright owners didn’t authorize and couldn’t control – a lot like TV shows got moved to blank videotapes.
This leads into my big questions: What would this opinion really have meant for the VCR? Would “See any TV show you want to, anytime you want to see it” or “build a library” count as enough obvious encouragement of librarying – which was not found to be fair use – to justify a finding of contributory infringement? (I’m still looking for a copy of the “build a library” ad, unfortunately.) What about “any TV show” in the context of pay cable, which again was not analyzed as fair use when the Court looked at time-shifting free broadcast TV?
[Images in extended entry]
Moving onward, what would a responsible lawyer tell Apple about “Rip. Mix. Burn.” after today? Does that clearly promote infringement?
How about Sourceforge, which distributes Azureus, a major BitTorrent client? Let me make clear that Sourceforge offers BitTorrent software, not torrents or files – it seems to me trivial even in the pre-reversal 9th Circuit to establish that sites hosting unauthorized torrents are contributory infringers. Sourceforge is not such a site. It offers only the peer-to-peer technology, naked and pure. Except: drill down into the description on the site a bit, and you get this: “The RSS Feed Scanner is an automatic RSS feed parser which is highly configurable and allows unnattended operation via its advanced filtering capabilities. .... The filter strings can be easily edited via the graphical configuration tool, and each filter can also support targeting of specific episodes within a series of the same titles (for example in downloading episodes of shows).” So maybe not so pure after all. Maybe this means that Sourceforge is a black hat, despite initial appearances, or that this particular plugin is inherently infringement-promoting. I would definitely not rest easy tonight if I ran Sourceforge.
Another question is whether the decision, which is explicitly targeted at “devices” including software, will have spillover effects on non-device-related conduct. Already in the Napster/venture capitalist litigation and in the Canadian P2P litigation questions have been raised about whether someone who enables sharing of files on her computer is encouraging infringement by those who download those files. If all she does is enable (or fail to disable, depending on how her file-sharing software is configured) uploading, has she done enough to be liable for others’ infringement? This may not be all that important if the copyright owner’s right of distribution is broadly defined, but the scope of the distribution right remains unsettled.Relatedly, I’ve long wondered whether this PBS lesson plan, which encourages the creation of unauthorized derivative works and even their dissemination on the Internet, constitutes contributory infringement. That page has plenty of “solicitation that broadcasts a message designed to stimulate others” to create unauthorized copies (slip op. at 20). Many people will, of course, think that most or all of the resultant art is fair use – but fair use is not usually what people want to rely on when copyright owners’ lawyers come around. If I encourage you to create mash-ups of existing songs, believing that at least some of the time the results will be fair use, have I induced infringement if, some of the time, the results are infringing?
Justice Souter doesn’t get into this question, because Grokster conceded that unauthorized copying using its software would be infringement, but it could become important for other technologies, including a future “Rip. Mix. Burn.” campaign.
What is "Inducement"?
Grokster | 04:17 PM | Derek Slater | Comments (1) | TrackBack
I am honored to be in the company of such stellar thinkers today at SCOTUS blog - thanks to Tom and co. for the opportunity. To introduce myself and where I'm coming from: my name is Derek Slater, and, as a student fellow at the Berkman Center for Internet and Society, I work on the Digital Media Project and contributed to the amicus brief in support of respondents by Professors Fisher, Zittrain, and Palfrey. Currently, I'm a summer intern at the Electronic Frontier Foundation, which acts as counsel for Streamcast Networks.
Today, I'll be posting here, EFF's blog DeepLinks, and my blog, A Copyfighter's Musings, and cross-posting between them. What I write here is my own opinion and does not represent the views of the organizations for which I work.With that said, let's dive in. Looks like I'm already behind, so I'll start midstream.
At the least, one could hope that the Supreme Court's decision in December to hear the Grokster case was a first step in bringing clarity to secondary copyright infringement doctrines. Instead, the Court introduced a new doctrine, the contours of which are entirely unclear. The ambiguity invites more lawsuits and will raise doubts in the minds of all innovators.
Apparently, the inducement test requires "clear expression" or "affirmative steps" to promote infringement. The Court includes communications to users and internal messages as possible evidence of wrongful purpose. But the Court says little about how explicit or on point such actions must be.
That allows copyright holders and courts to second-guess every decision an innovator has made. Every marketing campaign, every design choice, every business plan, every document concerning how the software might be used are potentially fair game. Mere knowledge of illegal uses is not enough, but plaintiffs might seize on anything that might hint at the company attempting to generate such uses.
Indeed, the Court harped on the companies' mere decision to market to Napster users. Because some Napster users infringed, advertising themselves as new Napsters indicated "a principal, if not exclusive, intent on the part of each [company] to bring about infringement." Even use of the -ster suffix drew the Court's ire. (Friendster, you're on notice.)
And once there's the scent of intent to satisfy infringers, inducement can include just about anything else. The Court states that failure to design a technology to reduce infringement is not sufficient. However, in the context of other evidence, as in this case, it can be. So too can be the mere fact that infringing uses produce financial benefits for the company. The Court leaves open what else might be added into the equation.
Equipped with this weapon, copyright holders have enough to force myriad innovators into court. Even if some innovators could eventually prove their innocence, the standard may be enough to force many into expensive trials that few can afford.
When the petitioners argued before the Court in March, they threw the kitchen sink of possible tests at the Court. It was if they didn't know which to adopt, and, it seems the Court was unsure as well. Because of the Court's failure to create a clear standard, now innovators share a sense of uncertainty, as their ability to create technology falls into doubt.Soon, I'll have more on the ambiguity in the standard, as well as how it could have been clearer.
More posts around the blogosphere on the inducement test's meaning:
Ed Felten on business models and design choices.
Susan Crawford offers a more positive view.
Randy Picker tries to pick apart the design issues. Lawrence Solum digs in, too.
Many more out there....[cross-posted at Deep Links]
More on Footnote 12
Grokster | 04:16 PM | Susan Crawford | Comments (0) | TrackBack
Ed Felten is right to focus on Footnote 12. That's the key footnote that technologists will be waving to say "don't allow the content industry to get into the business of designing our products and services." If there is no other evidence of intent and the device is capable of substantial noninfringing uses, you can't tag a technology with secondary infringement liability based on mere reluctance to filter.
Another legal-beagle point on this "don't design" argument is that the Court specifically says it is not talking about vicarious infringement. Vicarious infringement is based on "profiting from direct infringement while declining to exercise a right to stop or limit it," according to the Court. Vicarious liability doesn't require intent.
But we're in the contributory infringement box, which is based on "intentionally inducing or encouraging direct infringement." So the Court focuses on evidence showing an "affirmative intent" that the product be used to infringe. Contributory infringement looks at active steps evidencing intent, while liability for vicarious infringement might only require a failure to act (such as failure to filter). The classic example given by the Court of active steps is advertisement -- which is a corporate message encouraging infringement.
I read the decision as saying that IF there is evidence of advertising AND other marketing and promotional indicia of intent, THEN failure to filter might be relevant. But failure to filter on its own (as Footnote 12 suggests) would never be enough.
Now, of course, it's not hard to do discovery and find evidence of intent. So this gives the content industry substantial ammunition. And that's why this is a balanced opinion that doesn't completely please either side.
Supreme Court Sows Uncertainty
Grokster | 04:07 PM | Fred von Lohmann | Comments (0) | TrackBack
[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.
Legality of Design Decisions, and Footnote 12
Grokster | 02:44 PM | Edward Felten | Comments (3) | TrackBack
As a technologist I find the most interesting, and scariest, part of the Grokster opinion to be the discussion of product design decisions. The Court seems to say that Sony bars liability based solely on product design (p. 16):
Sony barred secondary liability based on presuming or imputing intent to cause infringement solely from the design of distribution of a product capable of substantial lawful use, which the distributor knows is in fact used for infringement.
And again (on p. 17),
Sony's rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product.
But when it comes time to lay out the evidence of intent to foster infringement, we get this (p. 22):
Second, this evidence of unlawful objective is given added significance of MGM's showing that neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software. While the Ninth Circuit treated the defendants' failure to develop such tools as irrelevant because they lacked an independent duty to monitor their users' activity, we think this evidence underscores Grokster's and StreamCast's intentional facilitation of their users' infringement.
It's hard to square this with the previous statements that intent is not to be inferred from the characteristics of the product. Perhaps the answer is in -footnote 12, which the court hangs off the last word in the previous quote:
Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor.
So it seems that product design decisions are not to be questioned, unless there is some other evidence of bad intent to open the door.
To make things worse, the Court here criticizes Grokster and StreamCast for making a very reasonable engineering decision. There is every reason to believe that filtering technology would add to the cost and complexity of the companies' software, without substantially reducing infringement. (We discussed this issue in the computer science professors' brief.) In short, the Court here engages in exactly the kind of design second-guessing that technologists fear.
Legitimate technologists will still worry that a well-funded plaintiff can cook up a stew of product design second-guessing, business model second-guessing, and occasional failures of copyright compliance by low-level employees, into an active inducement case. This risk existed before, and the Court today hasn't done much to reduce it.
Yet More Muddlement and Merriment
Grokster | 02:08 PM | | Comments (0) | TrackBack
Professor Sullivan's concerns are well-taken, as are Professor Patry's: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 think there's a huge difference on these facts, though. In the archiving examples—whether Sony's early-1980s ads or programs available free on the 'net to record purportedly "live-stream-only" webcasts to file for later use—the initial data source is in fact an authorized source and an authorized distribution channel; it is only the later individual actions of the users that (might) make building one's own library questionable (although I think some non-copyright policies based on broadcast law and regulation tremendously muddle the issue, particularly as there remains the question of "how long is no longer timeshifting?"). Grokster et al., however, are not based on authorized source material and authorized distribution channels.
Which leads into an unanswered question: What about DeCSS? Applying Souter's test to the litigation over 2600 (ignoring for this purpose the DRM-evasion provisions in § 1201 et seq.) leads to a much closer result than in the now-long-final litigation below. Not only was there little (if any) "business model" to examine, but the characteristics of the community in question make ascribing piratical motivation a lot more difficult. Linux/Unix users had a legitimate gripe with noninteroperability imposed by CSS. I think that the DeCSS case very well might come out differently after Grokster… and a jury trial. Given the questionable provenance of and validity of chapter 12, I'm not sure how much help it would be in avoiding a jury trial. In any event, it would clearly not be amenable to summary judgment!
Painful Analogies
Grokster | 02:02 PM | Susan Crawford | Comments (0) | TrackBack
[I should have introduced myself two entries ago. I'm Susan Crawford, and I teach cyberlaw at Cardozo Law School. I'm proud to have been part of the team that worked on an amicus brief arguing for the same middle ground adopted by the Court today in Grokster. The brief was filed by the Digital Media Association, Netcoalition, CDT, and the ITAA.]
Humble metaphors make for bad internet policy. The Grokster 9-0 opinion doesn't use them.
But the BrandX guys -- my, all that talk about pizzas v. pizza delivery and dogs v. leashes. Just painful. And the use of this simplifying (but really obfuscating) set of metaphors indicates that the Court really didn't know what it was talking about when it started defining everything online as "information services" provided by the access provider.
So I'm hoping that we can categorize everything said about "information services" other than cable modem access as "dog dicta."
In my next entry, I'll go back to musing about Grokster, and, in particular, the meaning and import of fn. 12. We may have another fn. 4 of Carolene Products in the making.
Hollywood beats Grokster but not Silicon Valley
Grokster | 01:37 PM | Kathleen Sullivan | Comments (1) | TrackBack
There was little doubt Hollywood was going to win Grokster; the only issue was how. The Court wasn’t going to leave the motion picture and recording industries at the mercy of limitless free filesharing. Grokster wasn’t likely to get away with being a clever Napster any more than, to recall Mill’s famous example, a clever inciter would get away with saying to a mob “corn dealers are starvers of the poor” instead of “storm the farmhouse.” And the Court doesn’t generally grant cert. from the 9th Circuit to affirm.
But the litigating positions taken by both sides kept veering toward extremes. Many in the motion picture industry kept pushing for a 51% rule: if the primary use of a technology infringed copyright, contributory liability could follow. Whoops, there goes broadband. As you read this, at least half of what is whizzing by in cyberspace over connections like yours is likely infringement. So that couldn’t be the law; it’s unlikely that even Congress would enact it.
Grokster’s defenders kept pushing for an equally untenable 99.9% rule: if a technology, no matter how much it is used to infringe, is theoretically capable of a noninfringing use, then no contributory liability. Well, it’s an easy parlor game to think up a list of hypothetical noninfringing uses. This is a lot like overbreadth under the First Amendment—don’t stop hard-core porn because the rule might sweep in nude shots from the National Geographic. Not surprisingly, Sony, like Broadrick in the overbreadth context, introduced the word “substantial” as a way of ensuring that the balance is struck in favor of real rather than hypothetical innovation.
So a middle way between these two extremes was needed, but which one? Try to get the Court to split the difference at a 75% rule? Unlikely to work, because it sounds too legislative and this is an area in which the Court knows that technology is rapidly changing and may make any bright-line rule quickly obsolete. Use a standard instead of a rule, i.e. “overwhelming,” “vast majority,” “lion’s share” (it is MGM after all) of uses are infringing? Well, that would guarantee full employment for lawyers but not give a lot of clarity to the lower courts.
But there was an alternative third way in plain sight: to punt on the exact degree of infringingness required and to focus on active inducement. And if there was any disagreement among the justices on how inhibiting to innovative technology an objective rule or standard would be, such that they couldn’t agree on any way to read or change Sony, this offered an attractive way out. Plus this has the advantage of not adjudicating the messy fact question on the record below of just how much Grokster usage was infringing (90%? 75%? Now? Someday?)
They did disagree on the policy question, we now know from the concurrences, and they did take the escape hatch, with Justice Souter writing for the Court that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting act is of infringement by third parties.” On this standard, Hollywood surely has a strong case against Grokster on remand.
Sony remains unaltered because the Court couldn’t agree on how to restate or reform it. Three justices (Justice Ginsburg joined by Chief Justice Rehnquist and Justice Kennedy) would have reread Sony with a tilt toward Hollywood, requiring defendants to do a lot more than get a few declarations from pals like Brewster Kahle to show a reasonable prospect of substantial or commercially significant noninfringing use. Like a business plan and projected advertisement stream. Even Souter’s opinion showed some droll skepticism toward Grokster’s noninfringing use defense on this record: “While there is doubtless some demand for free Shakespeare, users seeking Top 40 songs …or the latest release by Modest Mouse, are certain to be far more numerous than those seeking a free Decameron…”
Justice Breyer joined by Justices Stevens and O’Connor would have read Sony with a tilt toward Silicon Valley, with Grokster’s showing of 10% noninfringing uses good enough if it weren’t for that darn active inducement problem. Breyer, one of only two dissenters in Eldred, is consistently alert to the problems of evolving technology and anxious that courts not do anything to strangle little Ipods in their cradles.
So what’s the bottom line? While it wasn’t a 51% rule, the decision was still obviously a strong win for Hollywood, and while it wasn’t a 99.9% rule, it also preserved important protections from secondary liability for technology innovators whose business model is something other than exploiting infringement. The outcome was a tribute to the advocacy of those pushing for a middle way (the SG, Don Verrilli for the studios at the oral argument, the high-tech amici who wrote in support of neither side).
Some in the Grokster camp will likely try to put a game face on the loss by predicting the ruling will be easily evaded by clever inducers. That is unlikely. Willful blindness will not be a helpful business model for the future, even for technopiles like Justice Breyer, who wrote that Grokster itself “may well be liable under today’s holding.” On the other hand, Breyer’s opinion reminded Hollywood that it could do more to introduce digital watermarking and fingerprinting to stop making things so easy for the geek world to pillage it. Future rulings on active inducement will likely take into account how hard each side really tried.
It's More Important Than Grokster
Grokster | 01:27 PM | Susan Crawford | Comments (2) | TrackBack
I realize that I was invited here to talk only about Grokster, but in the great traditions of the blogosphere I'm going to overstep my welcome.
The consequences of BrandX (also decided today) are more important than those of Grokster. Grokster keeps the status quo in place. BrandX opens up a whole new world of regulatory power.
"What?" you ask. "I thought BrandX was just about the access of little ISPs to big mean cable systems."
No. In fact, both opinions are the reverse of what they purport to be. The Grokster opinion gives certainty to tech companies. And the BrandX opinion takes it away again.
In BrandX, Justice Thomas gets very confused about the internet and ends up essentially announcing that everything a user does online is an "information service" being offered by the access provider. DNS, email (even if some other provider is making it available), applications, you name it -- they're all included in this package. And the FCC can make rules about these information services under its broad "ancillary jurisdiction."
This is very very big. This means that even though information services like IM and email don't have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules -- all the subjects of the FCC's IP-enabled services NPRM. I've blogged about this a good deal elsewhere, but I want the news to be heard here: the FCC is now squarely in charge of all internet-protocol enabled services.
The implications of all this are staggering. This is the real news from today. After the DC Circuit's ruling in the broadcast flag case, people may have thought that the FCC's "ancillary jurisdiction" was in trouble. No longer -- the FCC has been given an enormous jurisdictional surge in power.
As Jim Speta notes: "As Scalia says, 'This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.'"
A lot to like . . .
Grokster | 01:23 PM | Ian Gershengorn | Comments (0) | TrackBack
I can’t offer a balanced view because we represented the petitioners (the content providers) in the case. We are still in the process of digesting it all, but some initial reactions seem appropriate. From the content providers' side, there is a lot to like in the Souter opinion.
First, all nine Justices recognized the problem that copyright owners face. Justice Souter wrote that “the probable scope of copyright infringement is staggering,” and the Court noted the “evidence of infringement on a gigantic scale.” The Court also noted that “digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original, copying is easy, and many people (especially the young) use file-sharing software to download copyrighted works.” This is precisely the problem that content providers have identified and sought to remedy.
Second, the inducement standard the Court adopted is quite broad. Unlike Douglas Lichtman, I don’t think it will be so easy for systems like Grokster to simply “cleanse” their record. The Court’s standard properly makes relevant a lot of information that the content providers believe ought to be relevant, but that respondents had sought to render irrelevant. For example, the Court emphasized that respondents did not “attempt[] to develop filtering tools or other mechanisms to diminish the infringing activity” and the fact that they “make money by selling advertising space, by directing ads to the screens of computers employing their software.”
Third, the Court recognized the need for a “sound balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies.” It has been the content providers’ view all along that whatever a “sound balance” is, it cannot be that all of the content is available to everyone for free. That is no balance at all.
Fourth, although the Court did not address Sony, it vacated the Ninth Circuit’s standard – indeed, no Justice advocated the Ninth Circuit’s heightened knowledge standard. Moreover, the Court left open the possibility of vicarious liability. In short, the legal world was returned to its “pre-Grokster” order. In that order, both Courts of Appeals that had addressed peer-to-peer systems – the Seventh Circuit in Aimster and the Ninth Circuit in Napster – had found those systems to be culpable.
Lyle Has A Grokster Post
Grokster | 01:19 PM | Tom Goldstein | Comments (0) | TrackBack
On the main SCOTUSblog.
Business Models as Evidence of Intent
Grokster | 01:16 PM | Edward Felten | Comments (1) | TrackBack
[Greetings, SCOTUSblog readers. My name is Ed Felten. I'm a professor of computer science and public affairs at Princeton University. That makes me the token technologist in this group. I was one of seventeen computer science professors who filed an amicus brief in Grokster urging affirmance. I blog at freedom-to-tinker.com.]
One interesting aspect of Justice Souter's majority opinion is the criticism of the business models of StreamCast and Grokster (pp. 22-23):
Third, there is a further complement to the direct evidence of unlawful objective. It is useful to recall that StreamCast and Grokster make money by selling advertising space, by directing ads to the screens of computers employing their software. As the record shows, the more the software is used, the more ads are sent out and the greater the advertising revenue becomes. Since the extent of the software's use determines the gain to the distributors, the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing. This evidence alone would not justify an inference of unlawful intent, but viewed in the context of the entire record its import is clear.
It's hard to think of any conceivable business model for a software company under which an increase in use of the product does not lead to an increase in revenue. If you sell software, greater use allows you to increase the price, or to sell more units. Likewise if you sell software by subscription. If you give away the software and make money on auxiliary products or services, you'll still benefit from increased usage.
Certainly Sony's profits would have increased the more people used Betamaxes. The same is true for iPods, TiVos, photocopiers, and many other legitimate products. Profiting from use seems like pretty poor evidence of intent to cause infringement.
Balanced… or Evasive? (CEP)
Grokster | 12:51 PM | | Comments (0) | TrackBack
Professor Crawford argues that Grokster was a "balanced" opinion. In the sense that Grokster pretty much leaves Sony alone, I agree. In the sense that technology itself can continue to advance—it's just business plans that misuse technology that are suspect—I agree.
I don't agree, though, that the end result is "balanced," or that Aimster establishes a "formless balancing text." I think what the Court did here was largely to evade the Sony test's theoretical foundation with two limiting devices. First, it noted that Grokster isn't about the technology: It's about the business plan. Justice Souter appears to have taken great care to avoid criticizing the underlying technology, or even discussing it more than absolutely necessary to put the case in context. Second, the Court moved the matter even farther from the technology matter into civil procedure. Justice Souter explicitly said this wasn't the right decision on summary judgment, and Justice Ginsburg's concurrence is even more pointed in her citation of Fed. R. Civ. P. 56's standard for summary judgment. (N.B. This parallels the issue upon which we won the DMCA portion of Ellison: Evidence established in the record for one purpose was not interpreted against the moving party for another purpose by the District Court.)
It seems to me that this is another aspect of the "legal engineering" that Professor Solum cites in his initial reactions. Professor Solum is referring to the "product" legal engineering at the technology companies; the "process" legal engineering of getting the right information before a court is equally important. Aimster itself is an especially interesting example of the latter. As one quibble, I cannot agree with Professor Lichtman's assertion (earlier in this thread) that "Surely the Court realizes that well-advised bad actors rarely leave smoking guns lying about." In my experience, the "bad guys" almost always leave smoking guns lying about, primarily because the "bad guys" usually aren't lawyers and have no idea what might later be treated as a "smoking gun." I've seen this in IP work, in publishing contract interpretation, and in other contexts more times than I care to count. (And yes, I can count at least high enough to understand my billing rate.)
I don't think the Court "balanced" Sony as much as it evaded deciding anything based on Sony alone. I'm not a particular fan of the Sony test for a reason implied in Justice Souter's decision: the "staple article of commerce" test was drawn from common-law patent doctrine, but has since been codified… in a slightly different and not entirely congruent form. Thus, the underlying assumption may require at least some adjustment.
A Balanced View
Grokster | 12:34 PM | Susan Crawford | Comments (1) | TrackBack
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
Now, that's not to say that there aren't some clouds here for technology companies. If you've got a stated intent to help others infringe, and a bunch of "bad" ads, and lots of other evidence of culpable intent, and THEN someone writes to you and encourages you to adopt their filtering technology, and you don't -- well, then you might be liable for inducement. There are certainly ways that this opinion might spark litigation.
But for the moment, tech companies can breathe easy. Distribution of a general-purpose copying device, by itself, is simply not an infringing act. And that was the right decision. Happy summer vacation, Justices.
Initial Thoughts on Grokster (C.E. Petit)
Grokster | 11:54 AM | | Comments (3) | TrackBack
A short introduction from Charlie Petit: You can find my blawg at Scrivener's Error. I represent creators of intellectual property—primarily writers, but a few artists and musicians, too. My relationship to Grokster is indirect, primarily through Ellison v. Robertson (AOL). Ellison—more details here—concerned ISP liability for hosting Usenet newsgroups devoted to pirate editions of electronic books… and was written by the same judge who wrote the Ninth Circuit opinion in Grokster {PDF file}. Tom Perrelli and the team at Jenner & Block provided a great deal of assistance in the appellate phase in Ellison, although I do not represent any party in Grokster.
I already jumped the gun a bit on the decision, because I'm coming at it from an "impure" viewpoint. To begin with, I don't think this is purely a copyright matter: It's at least as much a question of civil procedure as it is of copyright—as was Ellison. We need to keep in mind that this is a decision on summary judgment, which means that the courts are not supposed to be making any credibility determinations or weighing any evidence. Although I haven't seen the actual record, my experience in Ellison leads me to believe that there is probably a lot of relevant information that is not reflected in the opinions. Nonetheless, I think that even what appears in the opinions makes summary judgment somewhat questionable: A reasonable jury could (not necessarily would) decide that the "software providers," the "network providers," or both are either vicariously or contributorily liable (or both). Of course, that just points toward the question of what "vicarious" and "contributory" copyright infringement are. I think those unfortunate (and potentially misleading) terms, but nonetheless they're what we have to work with.
First, a couple of general comments:
- The Court did not hold the defendants liable. Instead, Justice Souter's opinion ends (slip op. at 24, emphasis added):
There is substantial evidence in MGM's favor on all elements of inducement, and summary judgment in favor of Grokster and StreamCast was error. On remand, reconsideration of MGM's motion for summary judgment will be in order.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
In other words, this really was a case on civil procedure as much as on copyright law. Depending on the particular evidence, the defendants could be liable.
- Intent matters. Early in the opinion, Justice Souter ominously noted (slip op. at 5–6, emphasis added):
Grokster and StreamCast are not, however, merely passive recipients of information about infringing use. The record is replete with evidence that from the moment Grokster and StreamCast began to distribute their free software, each one clearly voiced the objective that recipients use it to download copyrighted works, and each took active steps to encourage infringement.
It wasn't just the knowledge; it was the very business model (slip op. at 8)
In addition to this evidence of express promotion, marketing, and intent to promote further, the business models employed by Grokster and StreamCast confirm that their principal object was use of their software to download copyrighted works.
- Nonetheless, the Court evaded the biggest question: What is the limit of the Sony doctrine? Rather than actually answering the question, the Court held that the Ninth Circuit overstated Sony's protection; that the evidence supported inducement claims in a way outside the scope of the Ninth Circuit's opinion (cf. slip op. at 14, noting that Sony presented no corresponding inducement evidence or claim); and that the Sony rule concerns only one theory of "secondary liability", not all theories of "secondary liability."
Sony's rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law. (slip op. at 17)
Unfortunately, Justice Souter's opinion never engages with the rhetorical problem of "what do we call something other than direct infringement?" I wish that he had; it's a shame he did not. His opinion usually uses the term "secondary infringement," although that's not parallel to "direct infringement." On the other hand, this is such a highly charged area that the argument that the Court need not decide that controversy today has some merit.
Lichtman: A Hollow Victory
Grokster | 11:49 AM | Douglas Lichtman | Comments (5) | TrackBack
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.