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Additional Grokster Commentary
Posted by chris riley on Monday, June 27 @ 14:46:13 EDT File Sharing
The Picker MobBlog and the SCOTUS discussion board have been extremely active. I will merely point the reader to them rather than attempting to summarize their contents. And while additional commentary on this case is bound to be lost in the flood, I cannot help but pass along my own opinions.

1. The EFF take is that the major result of the case will be massively increased litigation and strong chilling effects towards innovators. The vague standard given in the majority opinion ("object of promoting its use to infringe"? "clear expression or other affirmative steps"?) and the denial of summary judgment will cause any/every potentially infringing technology to be sued, and will discourage developers from creating new technologies out of fear of suit. While in theory many of these developers would win, many of them simply cannot afford a defense or just do not want to risk liability.

My (only partially joking) reaction to this is that my job security as a future cyberlawyer is assured.

2. A personal observation: this decision is very similar to the court's holding in Kelo. As in Kelo, the decision has overwhelming negative consequences; in Kelo, cities everywhere will begin taking private property for commercial development, and in Grokster, every potentially infringing program will be sued and will be forced to go to trial. In Kelo, the court expressly left open the limit of public use takings; in Grokster, the court refused to clarify existing ambiguity (the extent of Sony) and created a vague standard of inducement liability which will require much additional litigation to clarify. In the interim, while these ambiguities are resolved, it is the individual and the start-up companies who will suffer, and the large corporations who will benefit.

As a matter of principle, I believe both Kelo and Grokster are defensible. As a matter of execution, both are undesirable.
 
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