A Copyfighter’s Musings

Jonathan Zittrain spread the news as part of his keynote last night.  I’m glad my blurted “I don’t f-ing believe this” didn’t carry too far through the conference room. 

Tim Wu laid out the case for why the SC would grant cert. I only bought reasons 5-7, all of which explain but do not provide valid reason for the Court’s decision.  See the Grokster opposition to cert brief and FvL’s earlier post, but let me summarize some reasons why the cert grant is unwarranted.

The Court has gotten itself involved in Sony, Teleprompter, Fortnightly, etc., but that doesn’t provide any basis for getting involved here.  Those cases all involved fairly novel issues. Sony already set the standard in this area. You can draw distinctions between P2P and everything that’s come before it.  However, the underlying legal issues were already dealt with in Sony.  Indeed, that was the whole rationale behind the Grokster decision.

Moreover, the lower courts are still handling these issues just fine. There’s no circuit split that the Court needs to resolve.  The conflict over the consequences of passing that test is the substantial divergence between Grokster and Aimster, but Posner’s Aimster opinion is almost entirely dicta; the holding was entirely based on Aimster’s inability to show substantial non-infringing uses.  To the extent there is a conflict on that issue, it is minimal, and it’s not even clear that Posner’s standard in that narrow regard would not protect Grokster and Morpheus. 

Finally, and perhaps most importantly, Congress is already considering this very topic.  Congress is entirely capable of fine-tuning the liability standards should it choose to do so.  There is no urgent reason that the Court must solve this issue instead.

Filed by Derek Slater at 12:51 pm under General news
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