August 20, 2004  ·  Tim Wu

So will MGM v. Grokster fasttrack the Induce Act, as many (here Seth F.) think?

Hard to say, but there are some reasons, both from theory and history, to think that it won’t. First, the Grokster decision, by creating a Circuit split, actually creates legal uncertainty that may slow down settlement. Both sides now have a chance to win outright in the Supreme Court. This probably matters more to the electronics industry– with a chance to get everything they want through the Supreme Court, the attraction of settlement decreases.

Second, the story of Sony itself was similar in some ways. During the litigation, both sides had proposed legislation that would have settled Sony with one a various royalty schemes. After Sony came down from the Supreme Court, Sony stopped wanting to negotiate, and the MPAA reevaluated its stance and decided to take a softer line. Now history may not necessarily repeat itself, and Sony the company is a much more reputable player than KaZaA, but that’s the closest parallel.

Third, and finally, particularly if the Court grants cert., Congress may be reluctant to act in the midst of ongoing litigation. Congress likes reversing decisions, as opposed to deciding them itself — that has too much of a “bill of attainder” feeling.

In other words, much in my opinion turns on whether cert. is granted. See previous post.

  • http://oknarb.web-log.nl Branko Collin

    Speaking about reputability (reputableness? reputacalifragilisticexpialidociosity? thank you Shary Bobbins!) … er, where was I?

    Ah yeah, reputability. Could one reason why congress won’t fast-track Induce be that a court is of much higher repute than a bunch of unknown geek entrepeneurs?

  • Karl

    I don’t think the uncertainty in the legal landscape can do anything but hasten the speed of the INDUCE act. There is nothing in Betamax that says the Congress can’t act to change the way infringement is defined, or its scope; the Grokster decision reaffirms this line of reasoning.

    Unless you care to explain further, I can’t see how the Court’s decision in Grokster really would have any impact on the passing/scope/Constitutionality of the INDUCE Act.

    -kd

  • Raoul

    “Both sides now have a chance to win outright in the Supreme Court. This probably matters more to the electronics industry– with a chance to get everything they want through the Supreme Court, the attraction of settlement decreases.” Let�s hope so. I�ll take that bet. The RIAA thinks they have more negotiating leverage than they really do. They opened the negotiations with an unreasonably high demand, thereby, damaging their credibility and setting the tone for a long drawn out fight. There will be no settlement until all the sides are tired of fighting.

    �Congress likes reversing decisions, as opposed to deciding them itself� – Sometime Congress just likes to complain about them for thirty or so years.

    Professor Wu – Thanks . . .

  • http://www.cchopin.com Christopher Chopin

    I do have to think that the similarity between the intent component of the proposed Act and the lack of commercial viability (noninfringing) creating intent per Grokster at the very least given Orrin Hatch an authority to appeal to…