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.