Two Cool Items (warning: semi-vanity)

1.  CS Monitor article about Berklee Shares – I’m quoted somewhere along the way.

2.  Hope we get to read their blog, because this law school class apparently will be reading ours.

More on Verizon has a nice recap; Donna, as usual, has everything you’ll need.  More assorted thoughts:

Declan notes that an appeal might be difficult and unlikely, and Cary Sherman plays down how significant this will be to the RIAA.  Somehow, I’m not quite convinced that there won’t be further legal action here.  Maybe rather than an appeal, the RIAA will try to get another forum, but, as Ernest argues, that might be tricky.

I wonder how this will change the RIAA’s strategy.  Sure, they could go through with John Doe suits, but the pace of such suits and subpoenas will not be nearly as fast.  Will that make the suits less of a deterrent for downloaders?  Is the RIAA really willing to let these suits drag on?  Are they willing to go through with suits against more 12 year olds?

Another interesting twist: if you can’t force Verizon to hand over the name, then you can’t force an anonymizing proxy to do it either, right? 

It’s worth reading all of the District Court’s opinion, too, but, if you don’t have time, just check out the RIAA’s brag page.  The key part of the lower court’s ruling was Bates’ view that 512(h) includes all service providers as defined in 512(k)(1)(B), which is sufficiently broad.  That’s the premise from which everything else followed, and that same reasoning is what the appeals court called “silly.”

Again, I find it fascinating when opinions contrast in this way – when they see the same issue clearly, unambiguously, but oppositely.  Judge Bates, just like Ginsburg, claims to stick to the statute’s text and go no further, yet their opinions are night and day. 

BTW, returning to the other side of my post below, Judge Bates, too, could be seen as interpreting the statute to achieve a particular result.  Bates is incredibly dismissive of Verizon’s arguments and goes out of his way to say that the subpoena process will actually be good for users.  

Maybe neither of them are being result-oriented, maybe both are, maybe one is and one isn’t – that’s not what I’m really getting at.  What interests me is how the timeline lines up with the shift in interpretations.  It’s just a correlation, but it’s interesting.  What does it mean for there to be a trend of the law beyond trends in analytic and interpretive methods?

This is a similar question to the one I confronted when Judge Bates’ ruling on the constitutional issues came down, followed by Grokster:

“[The day of the Grokster decision] began with Frank wondering whether Judge Bates understood or cared about how digitization has impacted copyright. I’ve often wondered if progress in the copyfight would require waiting for a generation of judges and politicians that grew up with widespread use of personal computers and the Internet.  We need judges who have enough technical understanding to tackle these tricky issues and who understand that the copyfight has broader implications for speech, privacy, and innovation.”

Verizon Wins

Verizon is victorious.  Some quick thoughts here, and more above:

The first important thing to note is that the judgment was reached on statutory, not constitutional, grounds.  The latter were not discussed by the court, so they’re still live issues if the judgment were reversed en banc or by the Supreme Court.

Next, let’s remember (roughly) the timeline of this case.  The District Court made its judgment before the RIAA had started subpeonaing people, and the court seemed very unconcerned with the potential for abuse.  The appeals court rejected the stay before the RIAA had really gotten going. But at oral arguments, when the RIAA had started, the court seemed concerned.

That concern doesn’t translate into this judgment.  If anything, the potential for abusing the statute would probably be more present in their minds when considering the constitutional issues.  However, though Judge Ginsburg (the former Reagan nominee to the SC, right?) says that this judgment is all based on the reading of the statute, I get the feeling that there might be something else going on here. 

Maybe I’m getting that feeling just because I’m always suspicious of opinions that say that the text is unambiguous and, if you just follow the text strictly, the answer is obvious. Interpretations are rarely that easy. I agree with the court’s reading of the statute, but I’m not sure it’s as unambiguous as Ginsburg makes it out to be.  I’m going to have to go back and read the briefs and the district court’s opinion for comparison.

I’m not saying that this opinion is based on politics – it isn’t. But politics might have helped point in the right direction.

Finally, what happens next?  We should expect an appeal, but, in the meantime, that won’t do the RIAA much good.  This gives another push to Congress to step in.  If they open up 512 to debate, it will be on far different terms than when the statute was first passed.  I bet, if they open that up, it’ll be in the context of a broader rethinking of what they’re going to do to fix copyright’s current problems.  Those broader problems won’t necessarily be dealt with, but they’ll probably be considered and discussed, perhaps  in a more serious way than the P2P hearings that have been happening over the last several months.