Post- Post Post

I'm catching up with the blog now that I'm here, so you'll excuse a little time travel.

David Post's post on Volokh goes like this -- I'm going to add a paragraph that Kevin clipped out:

I think the Court will send the case back to the Ninth Circuit and say: you were right that, under Sony, the non-infringing uses here are substantial enough so that, standing alone, providers of these p2p technologies can't be held liable for the copyright infringements of network users. But — and here's the critical part — on these facts, it doesn't stand alone; there's evidence in this record that Grokster and the other defendants actively encouraged and induced its customers to infringe copyrights, and that inducement of this kind is not protected by the Sony safe harbor. The Court will then instruct the Ninth Circuit to re-open the case and evaluate whether or not this evidence is enough to hold the defendants liable on an inducement, or "aiding and abetting," theory of liability.

The record companies will claim victory, but it will be a Pyrrhic one — it will just cause the next generation of P2P providers to be more careful about what they say in their promotional and advertising material, secure in the knowledge that if they just shut up about it, they'll be allowed to go about their business without fear of copyright liability.

So my take on this is, as dumb as fairly brilliant people in and around the Supreme Court can be, this would be such a dumb outcome that even they wouldn't dare. After all, they kind of like IP cases -- they ultimately did decide Betamax and TrafFix and Dastar, just to name a few, after all. Imagine what a nice break a case like this must be in between the usual drudgery.

At the end of the day, it's hard to imagine the Supreme Court just giving a road map to infringement like that. In fact my guess is that the court will seek to promulgate a standard for what is and what is not a "substantial infringing use" -- emphasis on substantial -- using, in part, the record Post refers to in order to bolster a finding, not of intent, but that the defendants have made an admission of the substantialilty of the non-infringing uses.

That would, indeed, result in more careful public statements by purveyors of file-sharing and other "troublesome" technologies. But it would not be a total waste of time, if the court would along the way set out one of its famous "multiprong tests" or some other clearer standard that would effectively update Betamax -- or, even better, provide an appropriate legislative opening and leave the policymaking to Congress.