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.

20 August 2004

09:40 [GMT-6]

The Spin Cycle

I'm not even going to try to keep up with all of the bullshit flying in the blogosphere about the Grokster opinion, which has already been spun so far by advocates of various extreme positions that a reasonably sophisticated nonlawyer might think that at least three different and incompatible opinions were issued yesterday. For example, one individual (whose analysis is generally much better than this) simply quotes part of the Ninth Circuit's concession that it believes it is creating a circuit split with the Seventh over Aimster without noting three critical contextual issues that would completely change one's interpretation of both opinions:

In Aimster, there was substantial evidence in the record—as in Napster—of the principal's intent to facilitate widespread infringement. This evidence was apparently absent in Grokster. By itself, I think this distinction is enough to vitiate any purported circuit split. It's not that I think the Software Distributors in Grokster were saints who just wanted to play with a kewl technology; it's that sufficient evidence of intent to facilitate not just file transfer, but infringing file transfer, was not entered against them in the trial court.
In Aimster, the appeal was against a preliminary injunction granted by the trial judge, which gets a helluva lot of deference based on the trial judge's ability to review the evidence. That put a big thumb on the scales that resulted in the Seventh Circuit's affirmance. Contrariwise—this entire dispute resembles Tweedledum and Tweedledee—in Grokster, the underlying ruling affirmed on appeal had been in favor of the Software Distributors.
Perhaps most importantly, the facts as explained in the opinions are just plain incompatible. In Aimster, the facts before the court indicated that each user of the system had to register with it prior to downloading (there's the "ability to control" issue on which Grokster et al. evaded vicarious liability), and substantial indexing information was stored on Aimster's own servers (there's the "material contribution" absent in Grokster—and, in fact, specifically cited as something that quite probably would have swung the opinion the other way by Judge Thomas; compare Aimster, slip op. at 3, with Grokster, slip op. at 11739:

In the context of this case, the software design is of great import. As we have discussed, the software at issue in Napster I and Napster II employed a centralized set of servers that maintained an index of available files. In contrast, under both StreamCast’s decentralized, Gnutella-type network and Grokster’s quasi-decentralized, supernode, KaZaa-type network, no central index is maintained. Indeed, at present, neither StreamCast nor Grokster maintains control over index files. As the district court observed, even if the Software Distributors "closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption."

The irony that everyone thus far seems to be missing—and it is not even cited in Grokster—is that the DMCA has a specific safe-harbor for certain kinds of indexing activities, 17 U.S.C. § 512(d). This is probably because the Software Distributors, even if they had invoked this safe harbor, could not have sailed into it: They fail to meet two conditions (no financial benefit when aware of infringement, and removal of links to infringing material when notified). Nonetheless, it is somewhat curious that Judge Thomas did not cite to the general scope and structure of this particular safe harbor, because its reasoning pretty closely parallels his analysis of the contributory infringement theory.

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

All material © 2003–09 except where otherwise indicated. All rights reserved. N.B. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.

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Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
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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