27 June 2005

Grokster (2.1): An Ironic Interlude

I can't resist this note on a rhetorical irony from the reactions to the decision in Grokster. Right now, the absolutistic rhetoric—doom and gloom, no possibility of organic change or innovation—is coming from the purported advocates of change. Conversely, the rhetoric most accepting of individual circumstances and exceptions is coming from the "big bad entertainment industry."

It won't last, of course. And maybe it's more amusing to me because I've had to put up with absolutists on both sides who refuse to deal with the actual rights and wishes of the actual creators of copyrighted works (after all, when's the last time that the chairman of Fox actually did anything creative, other than accounting?). Or, more likely, it's just the amusement at the grotesque reflections in the funhouse mirrors: Amusing for a moment, but back to "normal" before long.

In any event, I do want to respond to one thing that certain individuals have been proclaiming. Loudly. And wrongly. "Inducement" is not new in copyright law; it has been a theory of liability in Anglo-American copyright law since not later than 1768, and using slightly different terminology was a critical underpinning to the piano-roll cases in the early 20th century. Only the vocabulary is "new," and really isn't that new at all unless all one reads is appellate decisions. "Incitement to copy" fell out of favor as the doctrines of contributory and vicarious infringement developed during the first half of the twentieth century, particularly in the line of cases leading up to Shapiro. It has always been a consideration, though; it's not an import from patent law, although some of the expression of it is. (I'm not making this comment over at SCOTUSBlog because it's out of place there.)

More tomorrow; I'm bushed.