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Supremes talk Grokster

From Tony Mauro's story on yesterday's spirited Grokster debate in front of the Supremes, it doesn't sound like Justice David Souter's lack of a personal computer slowed him down any. (Imagine his clerks: It's Monday -- quills and parchment or marble and chisels?)

Mauro's got a great description of the conundrum before the Court, as boiled down by Justice Antonin Scalia's use of Xerox as an example:

"... Scalia likened Grokster to the inventor of the Xerox photocopying machine, who, Scalia said, surely must have known that his initial cash flow would come from customers making illegal copies. Such innovators would be reluctant to create new products, Scalia said, if the high court laid down a rule that would allow copyright suits to shut them down "right out of the box." But other justices also fretted that the millions of illegal downloads cited by the entertainment industry have created a business founded on illegality. ..."

More blogging on Grokster:

SCOTUSblog: Court conflicted over Grokster. Excerpt: "

"[Movie studio counsel Donald B.] Verrilli's argument placed the heaviest emphasis on this "business model" argument, premised on the claim that Grokster and StreamCast simply adapted the old Napster file-sharing software so that they could avoid copyright liability, even while profiting handsomely from it. But his emphasis upon that argument -- strongly seconded by Acting Solicitor General Paul D. Clement, arguing for the federal government as amicus -- led Justice Sandra Day O'Connor and others to suggest that the remedy should be an "active inducement" claim, rather than a secondary copyright infringement claim. Justice Ruth Bader Ginsburg gave voice to a concern that seemed to be troubling a number of her colleagues, too -- the proper legal standard for judging secondary infringement in the digital age. She and others several times asked the attorneys to spell out their interpretation of the Sony Betamax standard, and to articulate why they thought it might not be adequate. (The Sony standard has usually been understood as barring secondary copyright infringement if the developer has created a product that has the capacity for "substantial non-infringing uses" that were "commercially significant.") ..."

Joho the blog: Grokster roundups. Great links to IP law geeks.

Legal Blog Watch: Awaiting Supremes response to MGM v. Grokster. Links to Lawrence Lessig, EFF, The New York Times, The Times of London.

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Posted by Laurel Newby on March 30, 2005 at 01:56 PM | Permalink | TrackBack (0)

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