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.