Unspun

I haven't even tried to stay on top of all the coverage and commentary on the MGM v. Grokster settlement announced yesterday, it would be impossible. From the sampling I have read, the following point does not seem to be getting across.

The defendants won a grand slam home run victory in two federal courts: summary judgment in the district court that was affirmed in full by the Ninth Circuit. The effect of the Supreme Court decision on the litigants (as we've seen, it has had and will continue to have other effects on other parties) is to take away the grand slam and say, "There's a theory on which the plaintiffs can win this case. So, defendants, not so fast. Instead of the early and complete victory you achieved below, there needs to be a trial. A jury needs to weigh the evidence and see what they think about what it means under this inducement theory we've discussed. Get back down there and have a trial."

Back in the trial court, it would be unusual if the parties weren't afforded time at this point to complete discovery and prepare for trial. The evidence the Supreme Court discussed as potentially problematic thus can be put in context, augmented, and explained. (Never underestimate the potential impact of skilled advocacy...) StreamCast appears to have the stomach for this fight, and I expect they will go forward and wage it effectively.

[Technorati tags: grokster; copyright; P2P; filesharing]

Settlement Talk

"The United States Supreme Court unanimously confirmed that using this service to trade copyrighted material is illegal." That's what the Grokster Web page says today as the result of a just-announced settlement. (Here are pertinent Google News and Technorati searches.) That's not, however, what the Supreme Court said. The Supreme Court said that on the record it reviewed, Grokster and the other defendant StreamCast (remember it?) were not entitled to summary judgment in their favor. (Summary judgment is something that is appropriate only where a court must conclude the outcome at trial is a foregone conclusion based on the applicable evidence and law.) I'm not sure why Grokster capitulated—StreamCast has not (and of the two I'd say StreamCast got the tougher interpretation of the record from the high court)—but the language you now see on the Grokster home page was unquestionably scripted by the settling plaintiffs as PR—without scrupulous regard to an accurate reading of the Grokster decision. (Likewise, the RIAA press release simply ignores StreamCast's existence.) You might take a look at our bulletin about the case if you're interested in a less partisan summary of the Supreme Court's analysis.

[Technorati tags: grokster; copyright; P2P; filesharing]

Late Great

How did we miss this? Tony at Parenthetical Statement created a "real time"* Justice Rehnquist costume. I'm adding him—posthumously, as it were—to Blawg Review #30 so he'll be preserved for posterity.

*I can't remember if this is who Leo Laporte said he was going as, but I think so.

Today's New Blawgs

You've gotta love a law firm that touts getting Slashdotted on its home page. And that is home to partners like Lee Gesmer, who writes a great blawg on IP and technology issues, MassLawBlog.com. In fact, I'm loving everything these guys are up to. Check out the Standards Blog, by Lee's partner Andy Updegrove, part of Consortiuminfo.org (a "comprehensive source of information on the Internet regarding standards, standard setting, and open source software, and on the role that these essential tools play in business and society"), and home of the aforementioned Slashdotted article, Microsoft Says "Maybe Someday" on OpenDocument. (Hey folks, you've just been "Bag-dotted," do I make the firm home page too?) As if that weren't enough, the firm also does Open Source Legal, a collection of resources and news around open source software and licensing.

All very cool, and all (at least to some extent) products of the evil genius of Nathan Burke. Nathan does Web development and marketing for Gesmer Updegrove (it's the wise law firm that recognizes the value of merging those two functions and having them competently staffed), and blogs about law firms that blog, among other things.

Topic Least Likely To Come Up At Confirmation Hearings (Unfortunately)

Declan McCullagh has this analysis at C|Net of nominee Alito's likely perspective on technology law ssues that may come before the high court: Nominee's past rulings give hint of tech views. And Donna Wentworth has been collecting and pointing to views related to Alito on Copyright.