Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

23 August 2004

14:13 [GMT-6]

Can You Grok This?

Over at Copyright, Derek Slater disagrees with some of my analysis of the distinctions between Aimster and Grokster:

I don't quite understand Petit's distinguishing Napster and Aimster based on intent. In Napster, there was evidence that the system operators intended the system for infringement, but the court's ruling didn't rest on that at all. In the contributory section, the court focused on Napster actual knowledge of specific infringements; the vicarious section focused on the right and ability to control in a similar fashion. As was the case in Napster and was further clarified in Grokster, actual knowledge of specific infringement must be received at a time when the receiver is capable of acting on that knowledge, and the right and ability to control is fully cabined within existing architecture. I'm not sure how you can read either of those cases to rest on an intent-based standard.

In Aimster, intent took on greater importance, but I'm not sure it was as critical as Petit makes it out to be. Judge Posner notes that Aimster willfully blinded itself to infringements and that Aimster's docs were focused on infringing content (like Napster's). However, he speaks of that in the context of noting that there was sufficient evidence for infringing uses and essentially no evidence of non-infringing uses. Indeed, basically that encompasses the holding of the case, and everything else is dicta. If you accept the rest of Posner's standard as more than dicta, intent still isn't the determining factor. He explains that infringing and non-infringing uses should be balanced, taking into account their probability and the ability for system operators to redesign to prevent infringement. Intent can be factored in particularly when considering the redesign, but it hardly seems to be determinative.

Grokster, Intent, and Cert (22 Aug 04)

This is what I get for being a civil procedure geek: I assumed that my shorthand references to the underlying opinions at issue would be clear enough. They apparently weren't.

Aimster was the pirate's appeal of a preliminary injunction entered in favor of the record companies by the trial judge. The standard of review for a preliminary injunction is extremely deferential; depending upon the circumstances, it will be either "abuse of discretion" or "clear error." That is already two strikes against the pirate: one for being the appellant, and one for the unfavorable standard of review. When issuing the preliminary injunction, the trial judge is allowed to—and, in this case, did—make credibility determinations based on all of the evidence. In Aimster below, this included an adverse credibility determination based on evidence of "Johnny Deep"'s intent to enable large-scale infringement.
Grokster, on the other hand, was the record companies' appeal of summary judgment entered in favor of the pirates by the trial judge. The standard of review for summary judgment is quite different: de novo (that is, the appeals court looks at the evidence and record independently), because on summary judgment the judge can make no credibility determinations. Instead, the judge may determine only whether facts are established so that no reasonable jury could possibly find otherwise based on that specific evidence. Thus, the only pre-briefing "strike" was against the record companies for being the appellant.

If you put this together, you'll see why the courts of appeals did not directly refer to evidence of intent. The weight of intent was subsumed within the procedural posture of the case. One must instead refer back to the trial court's opinion, and the public portion of the record, in both cases. That is where one finds the "intent" issues made explicit. The Seventh Circuit in Aimster was not allowed to touch the judge's credibility determinations on a preliminary injunction; when those credibility determinations are clearly "wrong," the court must find a misinterpretation of law that overrides them. The Ninth Circuit in Grokster, on the other hand, was not allowed to even consider credibility, because "all evidence is created equal" in summary judgment.

I thus stand by my emphasis on the "intent" evidence. Had the record companies in Grokster presented sufficient evidence of intent to make the factual record parallel to Aimster and Napster, the record companies may well have succeeded in a motion for a preliminary injunction. In any event, that evidence of intent would probably have been sufficient to deny all motions for summary judgment, because it would have changed the applicability of other evidence in the record. In turn, that means that absent extraordinary circumstances, there wouldn't have been this appeal in Grokster, because with rare exceptions (that are not implicated in this case) one can't appeal from a denial of summary judgment—only from an adverse summary judgment. Thus, the matter would have needed to go to trial before a jury to reach this stage; and, in those circumstances, we're back to deferring to the jury (that "no rational jury" standard) on the findings of fact, including the credibility of the witnesses and evidence.

So, then, tactics and civil procedure are at least as responsible for the differences in result between Aimster and Napster as any difference in substance. That makes this an inappropriate "circuit split" to justify certiorari. There may be substantive justifications for certiorari, but that's a much harder kind of review to get than is a circuit split. As I remarked in discussing Cheney, civil procedure can determine the outcome of important cases independent of their "objective" merits.

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
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US Supreme Court Opinions from the current and past couple of terms
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Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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