September 20, 2020

Grokster fever

From Monday’s New York Times: The Court of Online Opinion Has Its Say on File Sharing. This is the third piece in the Times this weekend about the Supreme Court’s soon-coming Grokster decision. The article quotes Prof. Felten briefly:

Mr. Snyder’s instructor at Princeton, Prof. Edward W. Felten, a frequently read blogger, was less enthusiastic. At his Web log, freedom-to-tinker.com, Professor Felton predicted that the court would leave the whole issue muddy.

“The Supreme Court’s Grokster decision won’t provide us with a broad, clear rule for evaluating future innovations, so the ball will be back in Congress’s court.”

It’s certainly hard to read the High Court’s tea leaves, but I’d be very surprised if the entertainment industries won a clear-cut victory here (although one should never underestimate the technological cluelessness of the justices).

In the end, a remand to the lower courts – or a muddy decision of cross-current opinions – wouldn’t be so bad, would it? I argue in “Darknet” that while we’re likely to see setbacks at the federal and state level in the next five to 10 years – Congress will surely become a battleground once this ruling comes down – the contours of our digital future will really be decided by society. And that will take a very long time, as today’s young people begin interacting with media in very different (and less deferential) ways than their parents did.

Time is on our side. So, I’m rooting for the law to stay out of the way.

Comments

  1. After reading the oral arguments again, I really think the justices showed a surprisingly good technical understanding of what’s at play here. The questions seemed very in tune with the impact that broad decisions would have on innovation.

    I’d be surprised if the outcome of Grokster was perceived as a win, outright or otherwise, for the record companies. At best (for them), I think the court will find Grokster liable but do so with a very narrow interpretation.

    I guess time will tell 🙂

  2. “although one should never underestimate the technological cluelessness of the justices”

    The Supremes are actually very technologically clueful. This has been clear at least since the CDA decision in 1997, given the detailed reasoning in it. And they show their understanding in oral argument too.

    Whether they are sympathetic, that’s an entirely different issue :-(.

  3. You may be right, Seth. I read the same news accounts of the justices being up to speed on the technological implications of the case. And, in the end, it may not matter one way or the other (as I say, I suspect not). Still, it’s likely that few or no justices uses P2P networks on a regular basis. I’d be more comfortable if O’Connor or Kennedy used BitTorrent, say. :~)

  4. It’s very hard to tell who is writing Freedom to Tinker now… any chance we can get a byline feature so that we know who wrotte this entry? (Ah, I see it in RSS, but not in HTML).

  5. Ah, it seems to work on the front page but not in the permalinks (see this vs. this).

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