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June 27, 2005
Susan Crawford: The Supremes Got Grokster Just Right
Cardozo law professor Susan Crawford, in a post entitled, "A Balanced View":
Today's Grokster opinion is a victory for content AND for technology. I was afraid that Sony would be undermined -- and it wasn't. The content guys were afraid that they wouldn't be able to go after bad guys -- and they've been given ammunition. What we've got is an opinion that is balanced and middle-of-the-road. It leaves Sony's "substantial noninfringing use" standard alone (yes, the concurring Justices snipe back and forth about what that standard means, but that doesn't matter), it doesn't adopt any formless Aimster balancing test, and it says strongly that you can't impute intent to technology. A good day for innovation. And a good day for Congressional staff, who won't have to deal with some request for Induce legislation -- we're done.
Over @ the SCOTUS Blog forum
, C.E. Petit disagrees:
Professor Crawford argues that Grokster was a "balanced" opinion. In the sense that Grokster pretty much leaves Sony alone, I agree. In the sense that technology itself can continue to advanceit's just business plans that misuse technology that are suspectI agree.
I don't agree, though, that the end result is "balanced," or that Aimster establishes a "formless balancing text." I think what the Court did here was largely to evade the Sony test's theoretical foundation with two limiting devices.
, in the comments
below: "It's not so much 'balanced' so much as 'buffeted by conflicting forces' -- not at all the same thing! :-) "
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