Lessig: The best thing about Sony is that it recognized the harm that legal uncertainty can impose upon innovation. If innovators have to guess how a federal court will balance the effects of its technology upon copyright interests, then there will be less innovation. Thus the genius of its rule was that it said essentially this: if your technology is "capable" of a "substantial noninfringing use," then the question of whether your technology should be permitted is no longer a judicial question. If it is capable of a substanial noninfringing use, then the question of balancing (which is always at the core of copyright) is left up to Congress.
So let's see what the Seventh Circuit has to say about Sony after it hears the
Aimster case. The Sevent Circuit Court of Appeals has posted
audio of the oral arguments in the Aimster hearings. [via
Boing Boing]
Lessig: So if you get a chance to read the Supreme Court's opinion in Dastar, keep in mind this brilliant observation by Duke Law Professor James Boyle: So we now know that while the word "origin" in an IP statute must be carefully defined in order to prevent rights-creep that would undermine the careful limitiations struck in a statutory scheme, the words "promote," "progress," "limited" and even "author" can be defined any way Congress wanted to even if that upsets the careful balance struck in a constitutional clause, because they are only words in the Constitution, and thus much less fundamental. Got it.
More on Dasta from
Lessig.
I know I said Dastar was decided correctly. I believe it was. But there is a line in the opinion that really gets me ? for it is the only place in the opinion where the Court cites Eldred, and it cites it for a proposition that must be wrong.
