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January 24, 2005
The Grokster Briefs - Same Old, Same Old?
Joe Hall sends word that Pam Samuelson has written her debut post on the weblog for her new class at Berkeley, Peer-to-Peer (P2P) Technology: Legal and Policy Challenges. The subject? The briefs that will be filed today in MGM v. Grokster -- or as Pam puts it, "More Grist for Our Mill":
It will be interesting to see whether MGM's position will be more refined than it was at the trial court and before the Ninth Circuit. Will it continue to argue positions that the Court considered and rejected more than twenty years ago in the Sony v. Universal decision? Or will it articulate some new and possibly more targeted challenge to Grokster's defense?
Speaking of which, fellow copyfighter Derek Slater has a few thoughts
on the first brief
we've seen, which was filed by the Video Software Dealer's Association
and has been circulating on various IP lists all weekend. As I understand it from the excerpts, the VSDA argues that in Sony, there was no way for the Court to mandate redesign of the VCR to limit infringement without also unduly limiting the freedom of expression -- but in Grokster, there very well may be. Derek respectfully disagrees.
"Distinguishing Sony because it only dealt with enjoining the technology altogether seems wrong to me. In terms of interpreting Sony, I think the Court resolved how we should treat redesigns, as I discussed here. From a normative perspective, I think Sony was right to not assess potential redesigns and simply use the substantial non-infringing uses rule, as I discussed here."
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