A Copyfighter’s Musings

As I said before, this could be extremely bad.  Ernest’s dead-on – if the Supreme Court takes this one, that does not bode well for the continuing vitality of Sony.  I also agree that the SC is unlikely to take this up, because even had Posner actually followed Sony via Napster, he would have come to the same result.  One could argue that, because Posner’s opinion was so flawed, there are more issues that the SC would be willing to take a look at.  Certainly, Posner took liberties with Sony – the pseudo-negligence rule he adopted contradicts the hybrid technical and user capability standard in Sony (see previous posts here and here for more explanation).  But, almost the entire opinion is dicta, so I doubt the Court will have any interest in it.  No bad precedent has really been set, because the holding was quite simple: if you have no substantial non-infringing uses, then you don’t fall under Sony.  In practice, Posner’s dicta is important – both sides of the Grokster appeal are citing to it.  Still, the SC won’t waste its time dealing with that.

Filed by Derek Slater at 4:25 pm under General news
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