Fair Use and Judicial Estoppel

March 31, 2005

Politics, Technology

The arguments presented to the Supreme Court (in MGM v. Grokster) are quite fascinating. While there was a great deal of expected posturing and blustering, there were some very interesting assertions made by the MGM attorneys. Tim Armstrong took the time to document the goings on in his blog.

In yesterday’s entry, Tim noted several key points.

  1. Many of the justices seemed tremendously concerned about an inventor’s right to create apart from the downstream (or unintended) consequences of such invetions. Armstrong wrote:

    At least some of the Justices, Scalia in particular, seemed troubled by how an inventor would know, at the time of inventing, how its invention might be marketed in the future.

  2. When confronted with this line of questioning, the MGM attorneys admitted something that they may not have intended:

    They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel.

  3. There was a great deal of discussion about “substantial non-infringing use” as described in Sony. I can’t wait to see the transcripts. I would really like to know how Grokster could make such a claim while the “marketing” of Grokster slyly implied infringing uses. This will be an interesting point to see how the Justices separate. I almost expect a separate concurring or dissenting opinion from Ginsberg on this one.

I am glad to hear that the justices were eager to consider fair use claims of consumers. I am surprised and heartened to hear that the justices are not eager to hold inventors liable for the actions of consumers that utilize their inventions. After all, would we hold “Smith & Wesson” guilty for a murder in a dark alley? Of course we wouldn’t. Nor should we hold Louisville Slugger culpable for the man that bludgeons his neighbor with a bat. So the court will have to wrangle through whether the “principal” (or intended) use of the product was to promote illegal activity. Barring such a finding, I doubt the court can hold Grokster developers as liable.

So what will the outcome be? Folks, I don’t have a clue. I am not a fortune-teller. And I really don’t know whether this court will simply wish to amend Sony or craft something far more expansive. Nevertheless, I’ll bet on marginal tweaks to Sony with no major “sea change” in sight.




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