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March 29, 2005
Scalia: How Can an Inventor Know How an Invention Will Be Marketed?
Via Berkman Center Executive Director John Palfrey, DC appellate attorney/Harvard LLM student Timothy Armstrong with one of the most detailed, nuanced first-person accounts of the Grokster hearing so far.
An especially intriguing bit:
At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future. How, some of the Justices asked MGM, could the inventors of the iPod (or the VCR, or the photocopier, or even the printing press) know whether they could go ahead with developing their invention? It surely would not be difficult for them to imagine that somebody might hit upon the idea of marketing their device as a tool for infringement.
MGM's answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one's own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM's side of the case who don't think that example is one bit legal.
Be sure to read the whole thing
Update: An echo @ Red Herring:
Mr. Verrilli said the high court should look at the business models of the companies accused of contributory infringement. A study conducted by the entertainment industry showed that 90 percent of the content on Grokster and Streamcast's networks was illegal, he said.
But the justices questioned how new technologies with uncertain business models would be treated under this rule. Mr. Verrilli did not answer the question directly. Instead, he said it was "obvious" that there are significant non-infringing uses for the iPod.
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