I have a feeling this case might occupy my thoughts for a little while. The more I think about it, the more I read it, the more confused I am. This has been the theme of the case, so I’m not surprised. Maybe I’ll change my mind about the following, but, right now, here’s how I’m feeling about this result.
I knew the facts went against Madster, so I was hoping that Posner would at least get the theory right.
In some ways, he adds to Sony. For instance, he notes that, counter Napster, specific knowledge (and, presumably, material contribution) does not trigger liability. Substantial non-infringing uses are still important. But he clarifies this by asserting that, when there are substantial infringing uses and you can control those uses without gross burden, you’re a contributory infringer. So is this a meaningful distinction?
And what in the hell is he talking about in that sentence I put in bold in the post below. Really – what does it mean for a feature to add value to the system? What would be a disproportionate cost? Think about the VCR and fast forwarding. Let’s say Posner’s right and fast-forwarding or using pause to skip commercials does create a derivative, infringing work. Couldn’t you take that feature out without substantial burden and without harming the substantial non-infringing uses? Well, you can get out of that by saying that fast-forwarding and pausing add value to the equipment in non-infringing ways.
You can play this out with P2P too. When I think of Napster, I think Posner’s statement is consistent with that case. But when I broaden it to Morpheus, I’m not sure. It depends how you balance the all these burdens and benefits.
And more importantly, it’s how you balance the infringing and non-infringing uses. That is what stands out to me in this opinion. Posner’s focus is on a cost-benefit analysis that compares infringing and non-infringing uses. Look at how he talks on page 13. His assessment gives weight to substantial non-infringing uses but under no circumstances stops there.
The sentiment that all inquiry ended with a finding of substantial non-infringing uses faded in Napster. There, it turned on knowledge. Here, it turns on an amorphous cost-benefit analysis. It sounds a lot like Napster, the result is a lot like Napster – I’m not sure if anything’s really that different. And, in that way, it doesn’t feel like this decision is terribly bad.
But here’s the thing: all he’s done is added more vague language that’s going to get someone in serious trouble. He’s taken one vague standard and replaced it with another, perhaps vaguer standard. Someone’s going to take this and apply it to Morpheus.
And, once again, I wish that these facts had not been litigated. Posner knew that the encryption scheme was, in this case, an attempt to put one over on the court. I must commend him for trying to distinguish Madster’s use from AIM’s or another service’s use. I know he was trying to draw some firm distinctions. But, in the end, I think the facts of the case led to some really messy principles.