derivative work

It’s not good. The best thing that can happen is that the Court affirms the 9th and the Sony SNIU rule, and gives us good language to support those precedents. In this optimistic view, the Court took it because this Court likes to take Important Big Social Issues and weigh in on them. The Court will weigh in on this one by repeating the wisdom of its earlier rule and smacking down those who push copyright too far.

The worst thing is the Court might entirely overrule Sony. I think a clean overruling is unlikely.

My fear is that the court will try to slice and dice the Sony rule, in an effort to get at the “bad guys” and help the “good guys.” The only way they will be able to do this will be to set up more complex tests. This will make it difficult for technologists and innovators to give us good tech. It will hurt innovation to prop up the music industry’s 90′s business model for a few more years. That model is already being supplanted by other models: independent artists doing their own distributions, a variety of fee-based online distributions, and more models coming. So it will be entirely a waste, making the course of law unnecessarily complex, involving courts in technology, and just generally screwing things up.

Sigh.