Supreme Court watchers tell us that we can expect a judgement in Grokster tomorrow. This is the case where the Hollywood studios are suing to require everyone who builds technology to anticipate all the copyright-infringing ways it could be used and design against them, setting up a test that many common apps couldn't pass: Web browsers, email clients, MP3 players, etc. EFF won the case in the lower court, and the sore-loser moviecrats got the Supreme Court to hear an appeal.
When the judgement comes down tomorrow, whichever way it goes, there will be a lot of fooforaw about What It All Means. Here's EFF's pre-emptive crib-sheet, written by Fred von Lohmann, our Head IP Attorney, who won the initial Grokster case:
# It's not about P2P. The P2P genie is irreversibly out of the bottle, with the software already installed on hundreds of millions of computers and developers in countries beyond the reach of American laws. It's the rest of America's innovation sector that will be living with the Supreme Court's ruling. So, as you read what they have to say, ask how it will affect not just Apple, HP, and Intel, but also the next "genius in a garage," like Sling Media or the kids developing urban vehicular grid technology.
# No matter what, we've won. From the beginning of this lawsuit, the entertainment industries pushed the lower courts to adopt extreme, outlandish interpretations of copyright law. For example, they argued that the Sony Betamax decision doesn't apply at all to Internet technologies, and that simply knowing that somebody is using your technology to infringe triggers an obligation to redesign it. No matter what the Court may announce on Monday, it will not be adopting this extreme position. So remember what we've already won.
# Main Event #1: Sony Betamax. In 1984, the Supreme Court rejected contributory liability for Sony because the Betamax was "capable of substantial noninfringing uses." Everyone will be watching to see what this Court has to say about that phrase. What does "capable" mean? What does "substantial" mean? What role, if any, does the proportion of infringing and noninfringing uses play?
# Main Event #2: Vicarious liability. The Supreme Court has never spoken on the doctrine of vicarious copyright liability, which lower courts have applied where a defendant has the right and ability to control an infringer and receives a direct financial benefit from the infringement. Will the Court endorse, modify, or reject what the lower courts have fashioned?
# Main Event #3: Inducement? There has been much talk about whether any such thing as "inducement liability" exists in copyright law and, if it does, what its scope might be. Justices Ginsburg and O'Connor asked several questions about the idea during the oral argument; Justice Scalia expressed skepticism. Don Verrilli, arguing for the entertainment industry, said that inducement liability would not be enough to address the concerns of copyright owners. What will the Court have to say about this uncharted territory?
# Next Bout: Congress. The Court's opinion will set the stage for the inevitable fight on Capitol Hill. A big victory for either side will be characterized as an "extreme" result, potentially strengthening the hand of the opposite side in Congress. An intermediate outcome, on the other hand, may lead Congress to "leave well enough alone."
