A Copyfighter’s Musings

(Cue more thinking out loud, building on a few conversations I’ve had with others🙂 Oral arguments in Grokster will be in March (btw, someone let me know when the actual date is announced – gotta make travel arrangements)  I can’t imagine a decision coming down before the end of the term ~ mid-June.  What do we have to look forward to come summer, after the decision is handed down?

Either way, things will get messy.  Generally speaking, if Grokster wins, we should expect the return of INDUCE, right?  Once and for all, the ball will be in Congress’ court. If Grokster loses: send in the lawyers.  Grokster, check, Morpheus, check.  Finish off KaZaA, then hit eDonkey.  Maybe start hitting up the smaller distributors and networks – your Bearshares and Soulseeks of the P2P universe.  For BitTorrent – who are they going to sue? Bram Cohen?  That should be interesting.  Many months later, expect a Lexmark or Skylink like lawsuit coming from out of nowhere.  Didn’t take long to start seeing unintended consequences of DMCA; don’t expect it to be much different here.

Of course, this description is a bit too black and white.  Whether these parties win or lose at the SC, the specific test applied will be important. A ruling covering certain P2P systems will extend beyond systems like Morpheus and KaZaA alone, but the question is how broadly and how easily will one be able to map the ruling onto similar/analogous contexts.  One can imagine a ruling that nails Grokster and Morpheus, but somehow doesn’t end up covering some other P2P systems.  (In which case, again, we quite obviously only get more chilling effects without doing a damn thing about stopping P2P.)  Indeed, one can imagine a test harsher than Sony but one or both systems manage to pass given the facts.  Maybe they limit it to the auto-update feature, effectively backing out of some of the more substantive questions.  Maybe they go with a negligence like balancing test, with a ruling so fact-specific that it’s not clear how it applies to a non-corporate entity like Cohen.  Maybe the ante is upped on how substantial the non-infringing uses have to be.  Anyway, any chink in the Sony standard would likely generate a new lawsuit against a P2P system operator, to push the ruling as far as it can go.

(BTW, the title of this post is not meant to imply that Sony is dead and Grokster will lose.  Rather, in a short while, we’re likely going to start referring to the Grokster standard for contributory and vicarious copyright infringement, rather than the Sony or Sony-Betamax test.)

Filed by Derek Slater at 3:53 pm under General news
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