Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Blogbook IP
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyright Readings
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Julian Dibbell
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
James Grimmelmann
Groklaw News
Matt Haughey
Erik J. Heels
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
Joi Ito
Jon Johansen
JD Lasica
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
David Weinberger
Matthew Yglesias

Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
Chief Blogging Officer
Drew Clark
Chris Cohen
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Ben Edelman
Ernie the Attorney
How Appealing
Industry Standard
IP Democracy
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
MIT Tech Review
Paper Chase
Frank Paynter
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

Berkman @ Harvard
Chilling Effects
CIS @ Stanford
Copyright Reform
Creative Commons
Global Internet Proj.
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office

In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline


« Lies, Damn Lies and BSA Statistics | Main | More on the BSA's 'Statistics' »

June 25, 2005

How to Read the Supreme Court Ruling in Grokster

Email This Entry

Posted by

My EFF colleague and StreamCast lead counsel Fred von Lohmann gives his take on how to "read" the Supreme Court's ruling Monday in MGM v. Grokster (Grokster Reader's Guide):

It's not about P2P. The P2P genie is irreversibly out of the bottle, with the software already installed on hundreds of millions of computers and developers in countries beyond the reach of American laws. It's the rest of America's innovation sector that will be living with the Supreme Court's ruling. So, as you read what they have to say, ask how it will affect not just Apple, HP, and Intel, but also the next "genius in a garage," like Sling Media or the kids developing urban vehicular grid technology.

That's only the opener. As we are wont to say in the blogosphere, read the whole thing.

Comments (7) + TrackBacks (0) | Category: Laws and Regulations


1. Brad Hutchings on June 25, 2005 11:23 PM writes...

I don't get it Donna. I thought that if Grokster lost any of this case, that our iPods would be illegal. That's what the EFF has been saying for months. Why change tunes now unless the EFF was just being ridiculous? Please explain.

Permalink to Comment

2. Donna on June 26, 2005 3:26 PM writes...

That's sounds like a ridiculous oversimplification.

What part of Fred's guide are you responding to, and what point are you trying to make?

Permalink to Comment

3. Brad Hutchings on June 27, 2005 1:27 AM writes...

Hmmm... Endangered devices? Wasn't that an EFF publicity effort? You remember. Come on, I wasn't imagining it, was I? If Grokster lost, then iPods and a host of other popular, useful tech artifacts would be illegal.

So Monday, it looks to me like the biggest loser will be the EFF. Grokster will be found liable under a new test that clarifies Betamax, by looking at the business model of Grokster and concluding that it benefited directly and proportionally to substantial widescale end-user infringement. iPods will not be illegal. Nor will DVD recorders or graphite pencils. And questions will be raised about whether the EFF jumped the shark on this endgangered devices campaign. Seriously, the EFF might as well have been Mark Garagos defending Scott Peterson.

Really, post-Grokster, why should anyone take the EFF seriosuly?

Permalink to Comment

4. Branko Collin on June 27, 2005 7:21 AM writes...

"Come on, I wasn't imagining it, was I?"

I think you were. Considering that Donna asked for a reference, and you are unwilling to provide it, one must assume you are trolling.

"Grokster will be found liable under a new test that clarifies Betamax, by looking at the business model of Grokster and concluding that it benefited directly and proportionally to substantial widescale end-user infringement."

ITYM "overturns". The initial use of the VCR was solely an infringing use. This unlike Grokster, which has possible non-infringing uses.

Permalink to Comment

5. Brad Hutchings on June 27, 2005 8:42 AM writes...

Here's your reference. Scroll down to the iPod section and note that they suggest that a Grokster decision that doesn't go their way could make the iPod illegal. My post is no more a "troll" than this (now referenced) piece of work is.

It's kinda like last week's episode with the phantom Broadcast Flag bill. At some point, an organization like the EFF loses credibility for crying wolf. Under the intellectual veneer, it looks like the EFF is basically about providing cover so kids can share songs with 100,000 of their closest friends. If that's what the EFF is about, fine, just be honest about it, so the rest of us can evaluate accordingly.

Permalink to Comment

6. Branko Collin on June 27, 2005 11:43 AM writes...

Thanks for the link, Brad.

To quote from that page (emphasis mine):
"In the last congressional term, entertainment industry lobbyists nearly succeeded in persuading Congress to pass the Induce Act -- a radical rewrite of copyright law that aims to make creators of new technologies liable for "inducing" copyright infringement. If that was the law back in the early 1980s, the VCR would have been killed in infancy -- and if the Induce Act or something like it passes this year, we'll never know what future innovations will never see the light of day. Complicating matters even further is the Supreme Court's pending review of MGM v. Grokster, the result of which could be a similarly radical rewrite of the rules for copyright liability."

In other words, EFF was referring to the Induce Act, which never passed. There is also a mention of Grokster: if SCOTUS overturned Grokster, that could have similar consequences as when the Induce act would have passed.

What you said, that EFF claimed that if Grokster is overturned, our iPods are illegal, is an incorrect according to the text you linked to.

Permalink to Comment

7. Lily on July 4, 2005 9:08 PM writes...

First effects of Grokster says:

'Heres the first change that Ive seen due to the Grokster decision. Bonpoo is a service that lets you send large files to other people. It used to be general-purpose; you could send anything to your friends. Now, post-Grokster, they only let you send photos:

IMPORTANT NOTICE: At bonpoo we are constantly testing file transfers services that help people send legal files across the Internet. Given the recent Supreme Court decision we have suspended our free file transfer services except for photos. We apologize for any incovience. Please check out our professional product HeavyMail for an alternative to our prior service.'

By the way, Bonpoo's website is and HeavyMail's website is

Permalink to Comment


Email this entry to:

Your email address:

Message (optional):

Sherlock Holmes as Classical Fairytale
Trademark Law Includes False Endorsement
Kickstarter Math
IP Without Scarcity
Crash Patents
Why Create?
Facebook Admits it Might Have a Video Piracy Problem
A Natural Superfood, and Intellectual Property