grokster cert. petition thoughts

I was sad to see how many different groups jumped in on the Grokster cert. petition (asking to grant cert). [EFF’s Grokster page] Our amicus (telling the court to deny cert) looks pretty lonely in comparison.

Our brief addresses what two of what I think are the four possible reasons to take the case. One argument to take the case: the 9th Circuit & the district court got it wrong, and there are not substantial noninfringing uses. Our brief points out that there are substantial noninfringing uses, and thus the decision falls within Sony. A second argument to take the case is that the court might wish to reconsider Sony. Our brief argues that there’s no reason to reconsider Sony; Sony is still a good decision and has many beneficial effects, and Congress and private parties can tinker with it on the edges as necessary.

Other arguments to take the case that we don’t address: Third: circuit split. We don’t take this one on but EFF did — there is no circuit split, really, although there is an apparent split in outcome on the technology. But the question, under Sony, is whether there are substantial noninfringing uses. Aimster court said there probably were noninfringing uses, but since the parties didn’t put forward any noninfringing uses, the lower court wasn’t wrong to not seek them out. Grokster said the parties put forward noninfringing uses and found them substantial. That doesn’t look like a circuit split to me.

A fourth line of argument says take it on because this is a big technology, a big deal, and it’s very important. Nothing you can really do with that argument except point out that it’ll work itself out, which it will. We don’t really address that in detail in our brief but we do address it implicitly.

The various arguments the amici & parties lay out in favor of granting cert boil down to this: (a) we really want Sony reconsidered; and (b) this is a big controversial issue.

But as to the second, IMO, newsworthiness isn’t enough of a reason to grant cert.

That leaves the first. The only reason, really, to grant cert would be if the court wants to reconsider Sony — if they do want to reconsider Sony, then I agree that would be a good reason to grant cert. I fervently hope the court does not want to reconsider Sony. Interestingly, the support-of-cert petitioners aren’t ballsy enough to actually say outright that they want Sony reconsidered. (Or at least, none of the ones I’ve read yet have said so.) So instead they’re just trying to poke holes at it and suggest that it’s not working for the Internet, or in these times, or with this new technology, whatever. Some of them argue circuit split but none do it very convincingly. The content industry briefs (including the party brief by MGM) take on the substantial-noninfringing-uses argument, basically arguing that the noninfringing uses are not substantial.

Admittedly, I’m biased, but I don’t think that overall they make a convincing case for granting cert.

Content Industry Briefs

Most of the amici are various configurations of the content industry — Roxie, omnibus brief, NARAS, intl rights owner, artists’ coalition, SESAC, ASCAP, and of course MGM. Nothing new here.

15 Law Profs Brief

The law profs brief is a relatively small set of law profs, but still included some disappointments. Of their 15 total professors, I was sad to see Keith Aoki and Lolly Gasaway — they both signed our 9th circuit brief. Chuck McManis, Shubha Ghosh, and Lew Gibbons also overlapped. Otherwise they had 10 distinct profs and we had 35 distinct (really 36 because Jennifer Urban didn’t list herself as an IP prof, but she definitely is now). Arthur Miller & Neil Boorstyn, no surprise there….

The profs do point out, correctly, that there is ambiguity as to whether or not Sony covers just contributory or whether it also covers vicarious. But that ambiguity has been there since the beginning and courts have done okay with it. The 7th Circuit in Aimster assumed that both were covered, and the 9th Circuit assumed in Napster that only contributory was covered. But the question wasn’t central to any of the outcomes in Napster, Aimster, and Grokster. So Grokster doesn’t really require it to be addressed. Instead, the brief uses this and a few other standing questions to make the overall brief weightier.

The profs also said there is deep division between the circuits — bull-pucky. There is no real circuit split as I explained earlier.

As for the other briefs …


I’m irritated that the AIPLA decided to weigh in, which basically just says “it’s important, it’s important.” Because they don’t actually have any serious arguments to make. They say there’s a circuit split, pointing to the 9th & 7th Circuit’s interpretation of Sony. But the real point ought to be that the 9th Circuit got it right, and the 7th Circuit got it wrong. So why grant cert. in Grokster? They also think cert. should be granted to “clarify Sony with respect to the amount of evidence required” for secondary infringement. This is an interesting point but not, I think, really a substantial reason for granting cert. In fact, it’s the sort of thing that really would be better served by more courts weighing in on.

State AG’s

The state AGs — sure, they got 40, but they didn’t get the two big content-owning states — Spitzer/NY stayed out, and so did Lockyer/California. I would really like to know what leverage Hollywood has over all the AGs in the flyover states.

Progress & Freedom

Progress & Freedom — what on earth are they doing this for? First of all, how funny for them to represent consumers interest. Lame! Their argument: They posit that consumers face a “prisoner’s dilemma” and say that the Ninth Circuit didn’t adequately balance the consumer interest in authorial incentives with avoiding limitations on technologists. How does this encourage market solutions? The extension of secondary liability into the technology sector, will be a huge increase in government regulation — unless recourse to the courts is considered by PFF to be a market solution. In a couple of important ways of course it is, but I’m surprised to hear market conservatives talk about it that way.

My own take is that copyright should stay limited to regulation of particular forms of expression. As soon as it starts stepping into the land of innovation & technology we need to very carefully hem it in to make sure that it doesn’t go beyond its utility. If we don’t hem it in carefully copyright could easily swallow — well, almost any human artifact is an “original expression”. So you need to limit it, really, just to things that are aimed expressly at dealing with the subject matter of copyright. Hence the Sony rule, which says that if a technology is “merely capable of substantial noninfringing use” then making & offering the technology does not create secondary liability. This keeps copyright focused just on technologies that are aimed specifically at copyright infringement and incapable of noninfringing uses. To set aside this rule will mean that we have to evaluate all technologies for their infringing versus noninfringing uses. Copyright über alles.

Washington Law Foundation

Same for the Washington Law Foundation. First, if you’re looking at their claimed “interests”, then you have to wonder why didn’t they just join with PFF?

As for their arguments: They first seem to be basically asking the court to issue an advisory opinion, a big no-no. WLF acknowledges that the court doesn’t like to step in without specific Congressional action, an implicit acknowledgement that Congress is mucking about in the P2P waters already. But then they say “this Court can provide guidance with respect to the dimensions and breadth of copyright issues.” (p.3) Well, yes, the Court can provide guidance, but if Congress is fixing to overrule or restate or do whatever the hell it is fixing to do, then what sort of guidance would the Court really be providing? Then they go on to say that the need for guidance is more pronounced when the First Amendment is involved. Which they oddly justify by saying that in Reno, “a technology-centric approach for the Internet was considered” — and even though the approach was rejected, it was “utilized and evaluated.” The general theory that the First Amendment is applicable here, is good, but they seem to just be throwing the First Amendment in to make their “you should do an advisory opinion” argument weightier. Not persuasive.

The WLF’s second argument is simply that the framers couldn’t have imagined the technology or this case, and the First Amendment implications. Once again, I strongly agree that copyright implicates the First Amendment, and more attention to this question needs to be given by courts than has been given thus far. But why does it have to happen here in Grokster? They don’t explain that.

Third argument is a mish-mash of points: You can’t wait for the question to mature because the Internet moves too fast. (Yeah, whatever.) The disputable Sony-was-hardware, Grokster-is-services argument. (I really don’t want to see courts getting into the minutiae of technology to try to start making these distinctions. Is this what we want courts spending their time on?) The 7th & 9th reached opposite outcomes with the same technology. (But the facts were different … opposite outcomes with same technology is neither surprising nor in itself a reason for granting cert. It just means that courts can’t rubber-stamp all p2p technology with one or another finding — they actually have to look at the facts that are presented to the court.) This tech is different than the Sony tech. (So what?) The “intent” behind the service is to facilitate infringement. (Sony is not an intent-driven test. And in fact, copyright generally is strict liability. So why do we want to start getting into the intent in copyright law? ferchrissake, how much more complicated do they want copyright law to be?) And they wrap up with “We believe that the Court should make a fresh inquiry into the Copyright Clause / First Amendment boundaries in the context of the unique qualities of the Internet” which doesn’t wrap this section up at all.

The fourth argument is interesting. They say that p2p might be a disclosure to the public — IMO it unquestionably is. And then they cite to Bartnicki (the case about the radio broadcast of illegally recorded cell phone conversations) and argue that if you apply secondary liability principles to the Internet, then you have to consider the First Amendment issues even of disseminating copyrighted information. “Moreover, what happens when the system is used to exchange information that may be copyrighted but nonetheless is ‘of public concern?’ [sic] If a prohibition on enjoining the release of illegally obtained phone conversations violates the First Amendment, wouldn’t the same be true of imposing secondary liability on the use of a technological system that allows the transmission of such information?” Is this a reference to the Diebold controversy? They seem to be arguing against what I had thought was their point, that Grokster should be reversed. They then say “At the same time, given that the prevailing use of the peer-to-peer system appears to relate to distributing copyrighted material, deciding the particular balance between the First Amendment and secondary copyright liability on an individual case-by-case basis might be appropriate.” (p.9) If the prevailing use is distributing copyrighted material, then why do you need a case-by-case basis? case-by-case basis regarding the individual infringers? or regarding the secondary liability of the makers of the technology, which is what is at stake in Grokster? I’m confused. But I like the final sentence of this section: “Seemingly regular copyright infringement issues can become tainted with First Amendment overtones when the Internet is used as the technological medium.” “Tainted”. Ha. Of course, all copyright really ought to relate to the First Amendment, and I would expect that the First Amendment should be much more frequently considered in copyright cases than it is. Why limit it to Internet-related cases?

… Well, however it comes out, it will be interesting for me to see as a matter of strategy. Does inundating the court with an awful lot of amici make the court think this is such a big important case that it needs to be taken up right away? Or will the court actually consider the underlying merits of the typical you need to weigh in here arguments? Or is the court interested in overturning Sony? We’ll find out in another month or so.