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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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July 06, 2005

Samuelson on Grokster

Posted by Ernest Miller

Pam Samuelson weighs in on the Grokster decision in the forthcoming (Oct 2005) Communications of the Association for Computing Machinery.

Read the 7-page paper: Legally Speaking: Did MGM Really Win the Grokster Case? [PDF].

Her answer as to whether MGM actually won Grokster? Not really:

MGM didn’t really want to win Grokster on an active inducement theory. It has been so wary of this theory that it didn’t actively pursue the theory in the lower courts. What MGM really wanted in Grokster was for the Supreme Court to overturn or radically reinterpret the Sony decision and eliminate the safe harbor for technologies capable of SNIUs. MGM thought that the Supreme Court would be so shocked by the exceptionally large volume of unauthorized up- and downloading of copyrighted sound recordings and movies with the aid of p2p technologies, and so outraged by Grokster’s advertising revenues—which rise as the volume of infringing uses goes up—that it would abandon the Sony safe harbor in favor of one of the much stricter rules MGM proposed to the Court. These stricter rules would have given MGM and other copyright industry groups much greater leverage in challenging disruptive technologies, such as p2p software. Viewed in this light, MGM actually lost the case for which it was fighting. The copyright industry’s legal toolkit to challenge developers of p2p file-sharing technologies is only marginally greater now than before the Supreme Court decided the case.
Yup.

Read the whole thing. You'll find that her conclusions are very similar to my conclusions in Kicking the Sony Can Down the Road.

via Constitutional Code

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