tag:blogger.com,1999:blog-12505562.post111988996233335769..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: The Court PuntsWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-12505562.post-1119973424458148912005-06-28T11:43:00.000-04:002005-06-28T11:43:00.000-04:00The real problem is that the Court spends a dispro...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1119958294117106072005-06-28T07:31:00.000-04:002005-06-28T07:31:00.000-04:00Jack William Bell has a nice comment about the mar...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<BR/>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.<BR/><BR/>Perhaps we're safer if they don't take and decide cases; I tend to think so.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1119942824158575872005-06-28T03:13:00.000-04:002005-06-28T03:13:00.000-04:00I couldn't find a trackback link on your site, so ...I couldn't find a trackback link on your site, so I'm linking to <A HREF="http://www.livejournal.com/users/jackwilliambell/28044.html" REL="nofollow">my post about your commentary the hard way</A>.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1119934272621036262005-06-28T00:51:00.000-04:002005-06-28T00:51:00.000-04:00The introduction of the inducement theory, and a q...The introduction of the inducement theory, and a quick examination of the patent infringement inducment cases, raises some interesting question.<BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1119924782515750482005-06-27T22:13:00.000-04:002005-06-27T22:13:00.000-04:00Thank you Justice Ginsberg. After this and the em...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!Anonymousnoreply@blogger.com