Some (even many) may think that I am being a bit hyperbolic in my title for this post. But I honestly think its true.
As bad as the dilution of the neutral reportage privilege is in terms of free speech, a far more important case is currently in the hands of nine people with scant experience with the tools of the digital age that hold the key to keeping our freedoms at home - and spreading freedom around the globe.
How we communicate 20 years from now may very well be dictated by MGM v. Grokster. It will effect how the current war over media monopolies (i.e. blogs vs. mainstream media) is eventually resolved in the future. Some can't think that far ahead. Others don't see the bigger picture because they either can't think outside the pleading box of this particular case, or don't really understand the technology in question here - but I really think the stakes are that big.
Time will tell if I am a prophet or merely a chicken little, but I'll take the bet.
I will try and do an in depth analysis when I have time and if/when a transcript of the oral arguments are posted. Glad to see Scalia seems
to get it (as usual), but we will have to wait for the final decision.
Quick bottom line: It will be a disaster if the Court follows its usual instincts and refuses to issue a bright line rule and forces would-be innovators to never be sure if they are breaking the law or not.
Souter said: "The question is: how do we know in advance that we can give the inventor -- that is, the developer -- the confidence to go ahead? How do we avoid the foregone conclusion that the iPod developer is going to lose his shirt" in copyright damages?
A case-by-case approach will never provide such confidence. The chilling effect would be enormous and tremendous tragedy for this nation and the world.
Can you imagine the state of freedom in the world without the technological revolution that the VCR first ushered in? It almost didn't happen...by a 5-4 decision.
Posted by Justin Levine at March 29, 2005 08:33 PM | TrackBack