A Copyfighter’s Musings

(Some off the top of my head thoughts that are not really that novel but that I want to jot down anyway:)

First biggie: how is Sony treated as precedent?

A wholesale reverseal of Sony seems unlikely.  Instead, one could casually make some distinctions, as the district court opinion in Aimster did.  None of those distinctions seem particularly reasonable to me, but that doesn’t me the Court won’t use them.  If the Court does go this route, it will be important which distinction they choose to make.

Second, how does this affect those arguing on behalf of Grokster and Streamcast?  Obviously, they will need to highlight how the Court should be bound by what they said in Sony and how, as the 9th Circuit demonstrated, those rules clearly apply here.  At the same time, unlike in the courts below, it seems hard to believe that that alone will carry the day.  The normative arguments will play a much bigger role – what is the judicial system’s role here?  why is Sony as interpreted below the best rule?  what are the costs of changing it?

Filed by Derek Slater at 1:14 pm under General news
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