Monday, June 27, 2005

The Court Punts

First, here's a link to the main opinion: and here is Ginsburg's concurring and Breyer's concurring. I don't know about others, but I view the Court as having punted: they decided mainly an issue that wasn't in front of them (inducement) and didn't decide the one that was, the effect of Sony in the Internet era. I think this happened because neither the Ginsburg camp nor the Breyer camp could get two others to join. There were three for the picking, Souter, Scalia and Thomas. The two concurring camps have diametrically opposed views of the case, totalling six Justices. What does this do to the influence that the "unanimous" Souter opinion has? I think it greatly undermines it, resulting, as predicted in a muddied, murky future.

The Souter opinion does have a helpful slap down of the Ninth Circuit's bizarre "specific knowledge" requirement, and I think it is a good policy issue about the relationship of strong inducement evidence coupled with a staple article of commerce defense. But, I ask would the Betamax itself have met with Souter's approval? Recall Sony advertised that people could use it to copy their favorite movies, and we're talking here about librarying, not just time-shifting.

I need as most do, more time to sort through this, but my first read through is negative. We have two very different visions, Ginsburg's camp, which focuses more on what the hard evidence is now, and Breyer's, which focuses on the promise of technology, with three votes uncommitted to either camp. Regardless of whose side you favor, that kind of split is not helpful.


Anonymous said...

Thank you Justice Ginsberg. After this and the eminent domain decision, I can't believe you were once the ACLU's general counsel. Shame on you!

Anonymous said...

The introduction of the inducement theory, and a quick examination of the patent infringement inducment cases, raises some interesting question.

Injunctive relief: Allergan Sales v. Pharmacia Upjohn, 1996 WL 806683 (S.D.Cal.), 41 U.S.P.Q.2d 1283, suggests that the available injunctive relief is limited to the inducement, not the production or distribution of the infringing technology. This isn't going to shut down Grokster the way it shut down Napster.

Jurisdiction: Freehand Systems v. Schroeder,2004 WL 2191491 (N.D.Ill.) suggests issues regarding jurisdiction, i.e whether the inducement, distinct from the delivery of the software, was purposefully directed at the forum state.

Extraterritorial application: Other cases suggest that the limited extraterritorial application of the Copyright Act may limit the effective prosecution of inducement claims when inducement is on overseas websites.

Anonymous said...

I couldn't find a trackback link on your site, so I'm linking to my post about your commentary the hard way.

William Patry said...

Jack William Bell has a nice comment about the market impact. My reaction is an institutional one about the role of the Court. I have been attending Supreme Court oral arguments in IP cases since 1983. Until somewhat recently, one could always predict the outcome by a vote or two. In the 1980s and very early 1990s, it was hit or miss how well the Court grasped the matter, though. What has changed for me is that I am now always impressed by the Court's grasp of issues at oral argument, but am disappointed in the quality of the resulting decision. Grokster is the most disappointing of all. Like Lotus v. Borland, where the Court split 4-4 after a week (lazy!), Grokster raises to me serious issues about the ability of the Court to deal with hard copyright technnology issues. I had predicted after Grokster there were not 5 votes for either side and that proved true. But I didn't expect a phony 9-0 unanimous opinion, phony in the sense of tossing something out as if the Court had really done something. In my view they didn't. I'm happy they slapped down the Ninth Circuit's misreading of Sony. And I agree that the staple article of commerce doctrine shouldn't by itself insulate someone who actively induces infringement (although query whether the betamax would itself meet that test), but I find disturbing the real result of the case: a 3-3 decision with three on the sidelines. The Court is only deciding 75 cases a year. It is shameful to me that 5 votes couldn't be found and that the Court instead took the easy way out while trying to make it look that they not decided the actual
issues that made them take the case and that the parties argued. They only facilitated alot of grandstanding and spin by their 9-0 dump-off, while leaving to everyone else the problem of figuring out, once again, how to make sense of things.

Perhaps we're safer if they don't take and decide cases; I tend to think so.

Anonymous said...

The real problem is that the Court spends a disproportionate share of its time on a handful of issues (Death Penalty, Abortion, Habeus Corpus, Establishment Clause). In constrast, the Court doesn't take a lot of Intellectual Property cases. As smart as the Justices are, they're treading lightly in an area where they perhaps realize they don't fully understand all the implications. They're not going to come right out and say "We're amateurs at this," but even the best judges are going to be slightly adrift if you throw them a case out of their comfort zone. If you throw the Supremes a habeus case, they don't exhibit any sense of caution, because they deal with that issue several times a term.