The year of the music licensing legal wars

Grokster and StreamCast are dead. Even the iPod is no longer in production. They are buried and gone, like the Betamax and the Betamax “substantial non-infringing uses” standard — all relics of a bygone era, the ephemera of 2004. Copyright law barely made sense then. As you might suspect, 20 years later, it makes even less sense now.

The decision created a new form of liability known as “inducement”: the technology companies, the court ruled, had seduced the users — the teens, the kids, the fans, the pirates — into infringing copyright. It didn’t matter that these services never hosted any files or made a central index.

And they didn’t mince around what was happening across the country. “I know perfectly well I could go out and buy a CD and put it on my iPod,” said Justice David Souter. “But I also know perfectly well that if I can get the music on the iPod without buying the CD, that’s what I’m going to do.” If that was the case, and the RIAA got its way, wouldn’... See more

And then, in one of those mischievous asides that he was known for, Breyer added, “For all I know, the monks had a fit when Gutenberg made his press.”

And in the court’s strenuous efforts to walk that fine line between the iPod and the RIAA, it shamelessly made up an entire copyright law doctrine without batting an eye, a theory of liability that hadn’t existed up until that point in time.

That is, of course, more or less the rub: if the Xerox machine is somewhat of a troubling invention, everything about our modern-day computer-rich ecosystem is a thousand times worse. My phone syncs to my tablet syncs to my laptop; the value proposition of every device on my person is that it instantaneously and unquestioningly shares copies — of t... See more

“Mr. Chief Justice, and may it please the Court: copyright infringement is the only commercially significant use of the Grokster and StreamCast services, and that is no accident.”