Wednesday, March 30, 2005

Mon 'Sters of Rock

More Supreme Court file-sharing news, this time from the New York Times:

Justice David H. Souter asked Donald B. Verrilli Jr., the lawyer arguing for the Hollywood studios and the recording industry, to envision "a guy sitting in his garage inventing the iPod." "I know perfectly well that I can buy a CD and put it on my iPod," Justice Souter said. "But I also know if I can get music without buying it, I'm going to do so."

[B]y the end of the lively argument pitting Grokster and its allies on the electronic frontier against the entertainment community's stalwart defense of intellectual property rights, any prediction about what the court will actually decide appeared perilous. The justices themselves seemed taken aback by the procedural complexities of the case, Metro Goldwyn Mayer Studios v. Grokster Ltd., No. 04-480, which moved through the lower federal courts on summary judgment, without a trial.

...In briefs filed as friends of the court, allies of the file-sharing networks in various technology industries and civil liberties organizations have depicted file sharing as a useful, if not vital, means of expanding knowledge through the inexpensive transmission and Internet archiving of lawful material in the public domain. As long as the noninfringing uses were not "far-fetched," Mr. Taranto said, the defense that applied to videocassette recorders should be available for his clients' "autonomous communication tool," as he described file sharing.

...Paul D. Clement, the acting solicitor general, told the justices that while the Ninth Circuit had used as its test "the mere theoretical capability of noninfringing uses," the Supreme Court should look at the actual "business model" used by the defendants. It was an "extreme case," Mr. Clement said, a model built on "copyright infringement without liability, with the full knowledge that the draw is unlawful copying."

...Justice Antonin Scalia said he was concerned that legitimate uses of a new technology might need some time to become established; in the meantime, the developer would be defenseless against a copyright infringement suit. "What I worry about is a suit right out of the box," he said. "Do you give a company a couple of years to show 'substantial' noninfringement?"

Mr. Clement replied that in the government's view, there should be "a lot of leeway at the beginning." But that was "not this case," he said, asserting that Grokster and StreamCast had "a business plan from Day 1 to capitalize on Napster."
Duh. Anyway, the article goes on and on (and on). But it's interesting, and it is pretty important, I think.

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