Cable Clutter


Cable Clutter

Even though I managed to create at least double the amount of usable space on my desk to stretch out notes, outlines and practices questions, there’s still a lot used up by all of the computer clutter. And this is only for the one computer I actually use– the 3 retired (and semi-retired) computers have their own sets of mess.
Admittedly, the guitar capo isn’t computer clutter per se, but it fits with the theme.
Below the desk looks even worse!

This space for rent

The Boston Globe reports on the use of blogs are marketing vehicles: For a fee, some blogs boost firms: “The blog, in many ways, is the perfect marketing tool: original, personal, and cheap. It has grown popular as advertisers find it harder to capture consumers’ attention in a fragmented media market that is making traditional television and newspaper advertising less effective. But despite their foray into advertising, blogs remain an unregulated forum.”
I’d like to remind any marketers that AndrewRaff.com has many sponsorship opportunities still open. Your Logo Here. This blog isn’t necessarily all about shameless self promotion. For the right price, I’m willing to whatever minimal credibility I have to shamelessly promote something else, too!

Montague Street Shuffle

To follow up on a post from a couple of weeks ago, not all is bleak on Montague St. Thai 101 is now re-opened as Thai Montague, with what looks like a very similar menu. I can’t speak to the quality since I never ate in the old version and have yet to visit the new version.
I do know that I will be completely bored out of my mind with the take-out in this neighborhood by the bar exam rolls around, if not by next week.

iTunes + Podcasting

iTunes 4.9, which was released today, includes integrated podcast support and a podcast directory.
Podcast subscriptions now have their own special source list and it is easy to manage subscriptions within iTunes. This is not all that much different from NetNewsWire’s support for podcasts. NNW can automatically download podcasts and add them to the iTunes library and a podcast playlist. iTunes makes it easier to find and manage podcast subscriptions.
The best part about this new feature is that it is a real example of the democratization of media. Unlike the Music Store, Apple doesn’t host any podcast audio files– it simply uses RSS feeds to keep track of podcasts hosted all around the web. Apple posted directions on how to record a podcast using Garage Band and iTunes and add the podcast to the Podcast Directory.
It is interesting to see how programs that are on the same stations in the traditional media live in different worlds in iTunes. Featured podcasts On the Media, The Treatment and Le Show are carried on public radio stations. This American Life, All Things Considered and Morning Edition are carried on the same public radio stations, but available for downloads only through the Audible paid subscription service.
So far, I’ve moved over my subscriptions from NetNewsWire and added a couple. I am subscribed to The Brian Lehrer Show, On the Media, Le Show, The Importance of Law and IT. Perhaps I’ll have a chance to listen to these after Bob Feinberg gives up control of my iPod.
Hopefully, the next feature to come to iTunes will be a subscription service like Yahoo Music and Napster-to-Go. As much as I think the ownership model still applies to music, the free buffet approach looks like a winner, too (especially at Yahoo’s $60/year price level.) The subscription model lowers the transaction costs of listening to new music and makes it easier to sample new artists.

More Grokster Linkage

The Importance of the Law and IT: MGM v. Grokster: “Beyond just understanding what the court did and didn’t do, Ernie [Miller] along with Denise Howell and Charles (C.E.) Petit explore the decision that says Grokster could be found guilty of an “act of inducement” by encouraging (or not discouraging) its users to share infringing files.”
Siva Vaidhyanathan, Salon.com: Supreme Court’s unsound decision: “Note to technology developers who want to market products that will help people share copyrighted files: Whatever you do, don’t end your brand name with ‘-ster’!”
John Palfrey: The Entrepreneur in a Post-Grokster World: “The entertainment industry and big technology companies, often at one another’s throats in Washington, should be able to get along. In a digital age, after all, they need one another if they are both to thrive. They both got something to cheer about in the Grokster ruling handed down earlier today.”
David Post: Grokster Decision, Second Thoughts: “The unanimous Supreme Court decision holding Grokster & StreamCast liable as contributory copyright infringers for distributing peer-to-peer file-sharing software turns out, on close examination, to be not nearly the victory for the entertainment industry it might have seemed at first glance. [This, interestingly, repeats a pattern in these cases – Sony v. Universal Studios (the Betamax case) was not (nearly) as big a loss for Hollywood as it appeared, nor, as I have argued elsewhere, was the Napster case as big a win).”
Nathan Newman: Grokster and Ten Commandments Case the Same: “Essentially, politicians can promote a religion and Silicon Valley can promote technology that can illegally share copyrighted work AS LONG as they don’t SAY that’s what they are doing. Do it quietly, surround the potentially illegal activity with non-religious symbols or non-infringing uses and, voila, you’re legally scot-free.”

2nd Circuit Rules Pop-up Ads Don’t Use Trademarks

Today, the Second Circuit reverses the Southern District and rules that pop-up adware does not infringe on a trademark. 1-800 Contacts, Inc. v. WhenU, Inc.:

We hold that, as a matter of law, WhenU does not “use ”1-800’s trademarks within the meaning of the Lanham Act, 153 U.S.C. § 1127, when it (1) includes 1-800’s website address, which is almost identical to 1-800’s trademark, in an unpublished directory of terms that trigger delivery of WhenU’s contextually relevant advertising to C-users; or (2) causes separate, branded pop-up ads to appear on a C-user’s computer screen either above, below, or along the bottom edge of the 1-800 website window. Accordingly, we reverse the district court’s entry of a preliminary injunction and remand with instructions to (1) dismiss with prejudice 1-800’s trademark infringement claims against WhenU, and (2) proceed with 1-800’s remaining claims.

Eric Goldman: Important 2d Circuit Adware Case–1-800 Contacts v. WhenU: “I think the opinion is generally great. The lower court opinion was truly awful, and the Second Circuit clearly and unambiguously rejected that opinion. In particular, the court gave us lots of insights into what constitutes trademark “use” in the Internet keyword context. There has been considerable confusion on this very question, and the Second Circuit’s opinion will be persuasive precedent in all future cases throughout the nation.”

Brand X

Brand X has two distinct elements– the internet/telecom aspects and the administrative law aspects. I will focus on the internet/telecom aspects of the ruling and leave the administrative law aspects to the experts.
>National Cable & Telecommunications Assoc. v. Brand X Internet Services
Opinion (Thomas), Concurrence (Stevens), Concurrence (Breyer).
Dissent (Scalia):
Brand X and Administrative Law
As far as the administrative law aspects, the Court ruled that Chevron deference should be applied to the Commission’s decision classifying cable modem service as an “information service.” Prior inconsistency with past practice does not render an agency rule unreasonable. Such an inconsistency may be an arbitrary and capricious change only if the agency fails to explain the change. Where the statute is ambiguous, the agency’s interpretation of the statute will trump a court’s prior judicial interpretation unless “the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”
The information service & telecommunications service distinction
The distinction between an information service and telecommunications service is important in determining the authority which the FCC may exercise over a service provider and how the services are regulated under the Telecommunications Act.
Let’s start by looking at the text of the statute, in particular the 47 USC §153 definitions of telecommunications service and information service.

(46) Telecommunications service
The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
(43) Telecommunications
The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.
(20) Information service
The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

So, an information service is primarily concerned with transmitting information from a centralized source or sources to individuals, while a telecommunications service conveys unaltered information between individuals on the edge of the network.

Seen from the consumer’s point of view, the Commission concluded, cable modem service is not a telecommunications offering because the consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access: “As provided to the end user the telecommunications is part and parcel of cable modem service and is integral to its other capabilities.” Declaratory Ruling 4823, ¶39. The wire is used, in other words, to access the World Wide Web, newsgroups, and so forth, rather than “transparently” to transmit and receive ordinary-language messages without computer processing or storage of the message. See supra, at 4 (noting the Computer II notion of “transparent” transmission). The integrated character of this offering led the Commission to conclude that cable modem service is not a “stand-alone,” transparent offering of telecommunications. Declaratory Ruling 4823—4825, ¶¶41—43.

From the consumer’s point of view, cable modem access is different from DSL access? Even though many cable subscribers are paying for “information services,” such as email, web page and newsgroup servers, we do not use these services and only use the cable connection as a dumb way to access information services on the internet. The cable modem connection is just a dumb pipe. Well, except that the cable ISP (like any other ISP) provides DNS service which translates domain names that people understand (e.g. www.iptablog.org) into the IP addresses that computers understand (66.39.34.162).
The Court finds that because cable modem service provides the necessary capabilities to access information services, it is itself an information service.

The question, then, is whether the transmission component of cable modem service is sufficiently integrated with the finished service to make it reasonable to describe the two as a single, integrated offering. See ibid. We think that they are sufficiently integrated, because “[a] consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access.” Supra, at 16. In the telecommunications context, it is at least reasonable to describe companies as not “offering” to consumers each discrete input that is necessary to providing, and is always used in connection with, a finished service. We think it no misuse of language, for example, to say that cable companies providing Internet service do not “offer” consumers DNS, even though DNS is essential to providing Internet access.

In his dissent, Justice Scalia uses some unfortunate analogies to demonstrate why the provision of information services can be separated from the provision of internet access:

Thus, I agree (to adapt the Court’s example, ante, at 18) that it would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting. Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level). But what is sometimes true is not, as the Court seems to assume, always true. There are instances in which it is ridiculous to deny that one part of a joint offering is being offered merely because it is not offered on a “ ‘stand-alone’ ” basis, ante, at 17.
If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” ante, at 18, would prevent them from answering: “No, we do not offer delivery–but if you order a pizza from us, we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually ‘offering’ you delivery, because the delivery that we provide to our end users is ‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other capabilities.’ ” Cf. Declaratory Ruling 4823, ¶39; ante, at 16, 26.1 Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice.

While the law recognizes a de minimis exception for information services provided as part of telecommunications services, Justice Thomas finds that the DNS services offered by cable ISPs classify as a service that offers a capability for “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”

This construction does not leave all information service offerings exempt from mandatory Title II regulation. “It is plain,” for example, that a local telephone company “cannot escape Title II regulation of its residential local exchange service simply by packaging that service with voice mail.” Universal Service Report 11530, ¶60. That is because a telephone company that packages voice mail with telephone service offers a transparent transmission path–telephone service–that transmits information independent of the information-storage capabilities provided by voice mail. For instance, when a person makes a telephone call, his ability to convey and receive information using the call is only trivially affected by the additional voice-mail capability. Equally, were a telephone company to add a time-of-day announcement that played every time the user picked up his telephone, the “transparent” information transmitted in the ensuing call would be only trivially dependent on the information service the announcement provides. By contrast, the high-speed transmission used to provide cable modem service is a functionally integrated component of that service because it transmits data only in connection with the further processing of information and is necessary to provide Internet service. The Commission’s construction therefore was more limited than respondents assume.

The Court’s opinion allows the FCC to classify cable broadband internet service as an information service, rather than a telecommunications service. The benefit of this classification for cable internet users is avoiding the regulatory requirements of a telecommunications service, including universal service fees. The detriment is that cable providers do not have to open up their networks, insulating cable operators from competition. In contrast, incumbent DSL providers have to provide open access to the local networks, because DSL is a telecommunications service. Cable access is not quite a monopoly service, since it does compete in DSL, except in those areas where only one flavor of broadband access is available.
Another potential problem with this classification is that it may allow cable operators to create non-neutral networks. Generally, internet access works as a common carrier– once you are on the network, you can access services provided by third parties. If cable internet access is an information service, in the absence of more rules, the cable ISP can restrict access to third party services. Want to use a different email server? Too bad. Want to access streaming video content? Only if comes from a “partner” of the cable ISP. If the cable operators do not have to act as common carriers, the internet may no longer be a true end-to-end network, but a collection of “walled garden” services.
All in all, the decision does little to clarify telecommunications law and regulations. Perhaps Congress does need to step in and update the Telecom Act. After all, in internet time, 1996 is positively ancient. In addition, the US is lagging behind other states in promoting broadband.
In the May/June issue of Foreign Affairs, Thomas Bleha notes that the US no longer leads the world in deploying broadband connectivity: Down to the Wire : “In the first three years of the Bush administration, the United States dropped from 4th to 13th place in global rankings of broadband Internet usage. Today, most U.S. homes can access only “basic” broadband, among the slowest, most expensive, and least reliable in the developed world…. In fact, the United States is the only industrialized state without an explicit national policy for promoting broadband.”
Discussion, Links, Notes and Commentary
FCC Chairman Kevin J. Martin: “I am pleased that the U.S. Supreme Court has affirmed the FCC’s ruling. This decision provides much-needed regulatory clarity and a framework for broadband that can be applied to all providers. We can now move forward quickly to finalize regulations that will spur the deployment of broadband services for all Americans.”
Susan Crawford: It’s More Important Than Grokster: “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… 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.’”
Susan Crawford: If Someone Asks You About BrandX… “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.”
Tim Wu: Brand X & Network Neutrality: “Hopefully Brand X is good news: it gives the FCC room to try and ignite all-out warfare between cable, DSL, and whatever else. The battles with independent ISPs at some point had become a distraction and a sideshow that may have slowed deployment. Some will disagree with me, but I have long thought Title II or open access requirements for broadband as just a form of protection for a declining industry.”
News.com: Cable wins Supreme Court battle: “The cable industry can breathe a sigh of relief, as the U.S. Supreme Court has ruled that cable companies will not have to share their infrastructure with competing Internet service providers.”
AP: Cable Companies Don’t Need to Share Lines: “The Supreme Court ruled on Monday that cable companies may keep rival Internet providers from using their lines, a decision that will limit competition and consumers’ choices.”

Grokster

In MGM v. Grokster, the Supreme Court ruled unanimously that when a distributor of a product capable of both lawful and unlawful uses distributes such 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 acts of infringement by third parties.
The opinion of the Court, delivered by Justice Souter, adopts an active inducement standard for secondary copyright liability. Active inducement can be ascertained by looking to the express promotion, marketing, and intent to promote illicit uses of the technology and a lack of evidence that a developer made an effort to filter copyrighted material from the service. The inducement rule “premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.”
The Court finds that Sony is not controlling here, because neither of these P2P services are neutral products merely capable of infringing use, but developed and marketed for the purposes of encouraging infringing use.

In sum, where an article is “good for nothing else” but infringement, Canda v. Michigan Malleable Iron Co., supra, at 489, there is no legitimate public interest in its unlicensed availability, and there is no injustice in presuming or imputing an intent to infringe, see Henry v. A. B. Dick Co., 224 U.S. 1, 48 (1912), overruled on other grounds, Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502 (1917). Conversely, the doctrine absolves the equivocal conduct of selling an item with substantial lawful as well as unlawful uses, and limits liability to instances of more acute fault than the mere understanding that some of one’s products will be misused. It leaves breathing room for innovation and a vigorous commerce. See Sony Corp. v. Universal City Studios, supra, at 442; Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 221 (1980); Henry v. A. B. Dick Co., supra, at 48.

For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding 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 acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U.S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

In sum, this case is significantly different from Sony and reliance on that case to rule in favor of StreamCast and Grokster was error. Sony dealt with a claim of liability based solely on distributing a product with alternative lawful and unlawful uses, with knowledge that some users would follow the unlawful course. The case struck a balance between the interests of protection and innovation by holding that the product’s capability of substantial lawful employment should bar the imputation of fault and consequent secondary liability for the unlawful acts of others.

In a concurring opinion, Justice Ginsburg (joined by the Chief Justice and Justice Kennedy) writes that, even though the Court bases its ruling on the active inducement standard, Grokster and Streamcast may still be liable under the Sony Betamax standard. Ginsburg supports adopting the “percentage of use” interpretation of the Sony test advanced by the copyright owners, that supports a finding of liability for technology developer where the potential non-infringing uses of that technology are so far outnumbered by the potential infringing uses.

Even if the absolute number of noninfringing files copied using the Grokster and StreamCast software is large, it does not follow that the products are therefore put to substantial noninfringing uses and are thus immune from liability. The number of noninfringing copies may be reflective of, and dwarfed by, the huge total volume of files shared. Further, the District Court and the Court of Appeals did not sharply distinguish between uses of Grokster’s and StreamCast’s software products (which this case is about) and uses of peer-to-peer technology generally (which this case is not about).
In sum, when the record in this case was developed, there was evidence that Grokster’s and StreamCast’s products were, and had been for some time, overwhelmingly used to infringe, ante, at 4—6; App. 434—439, 476—481, and that this infringement was the overwhelming source of revenue from the products, ante, at 8—9; 259 F. Supp. 2d, at 1043—1044. Fairly appraised, the evidence was insufficient to demonstrate, beyond genuine debate, a reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time. On this record, the District Court should not have ruled dispositively on the contributory infringement charge by granting summary judgment to Grokster and StreamCast.

In another concurring opinion, Justice Breyer (joined by Justices Stevens and O’Connor) supports the interpretation of the Sony substantial non-infringing use test proffered by the technology developers– that the non-infringing uses must be substantial on their own without considering the specific percentage of infringing and non-infringing uses. Justice Breyeer agrees with the Ninth Circuit’s ruling under the Sony standard– that approximately 10% non-infringing use is more than sufficient to constitute substantial or commercially significant non-infringing use.

Here the record reveals a significant future market for noninfringing uses of Grokster-type peer-to-peer software. Such software permits the exchange of any sort of digital file–whether that file does, or does not, contain copyrighted material. As more and more uncopyrighted information is stored in swappable form, it seems a likely inference that lawful peer-to-peer sharing will become increasingly prevalent.
And that is just what is happening. Such legitimate noninfringing uses are coming to include the swapping of: research information (the initial purpose of many peer-to-peer networks); public domain films (e.g., those owned by the Prelinger Archive); historical recordings and digital educational materials (e.g., those stored on the Internet Archive); digital photos (OurPictures, for example, is starting a P2P photo-swapping service); “shareware” and “freeware” (e.g., Linux and certain Windows software); secure licensed music and movie files (Intent MediaWorks, for example, protects licensed content sent across P2P networks); news broadcasts past and present (the BBC Creative Archive lets users “rip, mix and share the BBC”); user-created audio and video files (including “podcasts” that may be distributed through P2P software); and all manner of free “open content” works collected by Creative Commons (one can search for Creative Commons material on StreamCast).
There may be other now-unforeseen noninfringing uses that develop for peer-to-peer software, just as the home-video rental industry (unmentioned in Sony) developed for the VCR. But the foreseeable development of such uses, when taken together with an estimated 10% noninfringing material, is sufficient to meet Sony’s standard. And while Sony considered the record following a trial, there are no facts asserted by MGM in its summary judgment filings that lead me to believe the outcome after a trial here could be any different. The lower courts reached the same conclusion.

Justice Breyer goes on to discuss whether the Sony standard should be modified, and looks to three factors:

  1. Has Sony (as I interpret it) worked to protect new technology?
  2. If so, would modification or strict interpretation significantly weaken that protection?
  3. If so, would new or necessary copyright-related benefits outweigh any such weakening?

To answer his first question, Breyer finds that the Sony rule has “provided entrepreneurs with needed assurance that they will be shielded from copyright liability as they bring valuable new technologies to market.” The Sony rule is beneficial because it is “strongly technology protecting,” “forward looking,” and “mindful of the limitations facing judges where matters of technology are concerned.”
To develop a stricter interpretation of the Sony standard would make it substantially more difficult for companies to bring innovative new technologies to market if those technologies have the potential to be used for copyright infringement.

The second, more difficult, question is whether a modified Sony rule (or a strict interpretation) would significantly weaken the law’s ability to protect new technology. Justice Ginsburg’s approach would require defendants to produce considerably more concrete evidence–more than was presented here–to earn Sony’s shelter. That heavier evidentiary demand, and especially the more dramatic (case-by-case balancing) modifications that MGM and the Government seek, would, I believe, undercut the protection that Sony now offers.
To require defendants to provide, for example, detailed evidence–say business plans, profitability estimates, projected technological modifications, and so forth–would doubtless make life easier for copyrightholder plaintiffs. But it would simultaneously increase the legal uncertainty that surrounds the creation or development of a new technology capable of being put to infringing uses. Inventors and entrepreneurs (in the garage, the dorm room, the corporate lab, or the boardroom) would have to fear (and in many cases endure) costly and extensive trials when they create, produce, or distribute the sort of information technology that can be used for copyright infringement.

Finally, Justice Breyer does “not doubt that a more intrusive Sony test would generally provide greater revenue security for copyright holders,” but when balanced against the gains produced by encouraging innovative new technology, it is difficult to conclude that the benefits to copyright owners would “exceed the losses on the technology roundabouts.”

For one thing, the law disfavors equating the two different kinds of gain and loss; rather, it leans in favor of protecting technology. As Sony itself makes clear, the producer of a technology which permits unlawful copying does not himself engage in unlawful copying–a fact that makes the attachment of copyright liability to the creation, production, or distribution of the technology an exceptional thing.… In any event, the evidence now available does not, in my view, make out a sufficiently strong case for change.

Links, Commentary, Crticism, Etc.
William Patry: The Court Punts: ” 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) 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.”
SCOTUSblog Grokster discussion with Ian Gershengorn, Ed Felten, Charles Petit, Susan Crawford, Douglas Lichtman, and more.
The Wall St. Journal Grokster Roundtable with James M. Burger , Michael Geist, Denise Howell, Ernest Miller, Thedore Olson, John Palfrey and Cristopher Ruhland.
The Picker MobBlog with Randy Picker, Doug Lichtman, Jessica Litman, Jim Speta, Julie Cohen, Larry Solum, Lior Strahilevitz, Phil Weiser, Ray Ku, Stuart Benjamin, Tim Wu, Tom Hazlett, and Wendy Gordon
Via über-blogger Ernest Miller, Notes on Pro-Grokster Press Conference and Notes on RIAA and MPAA Press Conference.
Eric Goldman: Grokster Supreme Court Ruling: “I think the Supreme Court reached the only logical result. It had to find for the plaintiffs. I say this because there was simply no way for the Court to ignore that Grokster and Streamcast were facilitating massive copyright infringement. As the court says, ‘the probable scope of copyright infringement is staggering’ and ‘there is evidence of infringement on a gigantic scale.’ If it ignored these facts, it was simply going to force Congress to act.”
Michael Madison: Grokster Redux: “So, innocent design + “culpable intent” = liability for indirect infringement. Is this such a bad thing? In the short term, I don’t think that it makes much difference in the dynamics of litigation. In the longer term, I think that courts can handle this, which makes me a little more sanguine than those who think that intent-based standards merely provide a road map for the bad guys.”
Cathy Kirkman: Grokster ruling and the tech industry: “The outcome seems fairly close to the amicus brief filed by the Business Software Alliance, out of the fifty-five amicus briefs that were submitted. The BSA’s amicus brief advocated upholding the Sony doctrine with a reversal based on additional acts of encouraging the use of the technology for infringing purposes. The BSA also asked the Supreme Court to confirm that customary contact with customers, such as advertising, product support and upgrades, is covered by the Betamax exemption.”
Rebecca Tushnet: More questions than answers: “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.”
Ernest Miller: Some Notes on Grokster :”The opinion emphasizes three main factors as “clear” evidence of intent. However, the first makes little sense and the next two are otherwise legal actions that only become evidence of intent if there is already evidence of intent.”
Lorne Manley, New York Times: Court Rules File-Sharing Networks Can Be Held Liable for Illegal Use: “The case, which pitted the entertainment industry against technology companies in the continuing battle over the proper balance between protecting copyrights and fostering innovation, overturns lower court decisions that found the file-sharing networks were not liable because their services allowed for substantial legitimate uses. The justices said there was enough evidence that the Web sites were seeking to profit from their customers’ use of the illegally shared files for the case to go back to lower court for trial.”
Roger Parloff, Fortune: The File Sharing Fight’s Not Over: “The U.S. Supreme Court ruled unanimously today in favor of an alliance of movie studios and record producers that brought a landmark copyright infringement suit against two providers of popular peer-to-peer, file-sharing software. Although the opinion, written by Justice David Souter, represents a clear victory for the entertainment industry, the ruling is narrow and does not necessarily spell doom for other providers of peer-to-peer file-sharing software.”
Lyle Denniston, SCOTUSblog: New challenge to file-sharing designers: “The Supreme Court’s unanimous (but in some ways divided) ruling on the use of copyright laws to try to stop the massive sharing over the Internet of music and movie files posts a significant legal warning to software designers, but does not turn them into complete copyright outlaws.”
IPKat: Grappling with Grokster: “The IPKat isn’t used to all this economic-style analysis dictating the direction of cases and hes not sure how good it is for the predictability of the law (although in this case he wonders if the Supreme Courts legal framework that it put in place here might well have stood up without it). By focusing on secondary infringement based on an intent to induce infringement, the Supreme Court has neatly side-stepped the issue of the limits of the rule that there is no secondary infringement where the method for infringement also has a legitimate use.”
Chris Riley at Lawmeme: “My (only partially joking) reaction to this is that my job security as a future cyberlawyer is assured.”
And, from Wonkette: The Supremes Are Trying to Break Your Heart: “Bachelor, close to his mom, brings his own lunch to work — we always suspected David Souter was the ‘emo justice.’ Now we know for sure.”