- The Court of Appeals affirmed the District Court's ruling that we had presented enough evidence to go to trial on contributory infringement.
- The Court of Appeals affirmed the District Court's ruling that we had not presented enough evidence to go to trial on vicarious infringement, but substantially narrowed the District Court's reasoning.
- The Court of Appeals reversed the District Court's ruling that we had not presented enough evidence to go to trial on whether AOL can claim any DMCA safe harbor. We asserted that a jury could find that AOL's "black hole" for notification of infringements was not reasonable. In very strong language, without even reaching the other evidence, the Court of Appeals agreed.
- The Court of Appeals affirmed the District Court's ruling that USENET servers provide transitory communications under § 512(a), not stored communications under § 512(c). We believe this is incorrect, and are somewhat puzzled that both the District Court and Court of Appeals completely failed to acknowledge the Fourth Circuit's contrary holding. However, this matters only if we go to trial and lose point 3; if we win that, this issue will not even be reached.
On the whole, we're pretty pleased with the opinion, particularly since significant parts of the opinion essentially quote from our briefs. So, then, what comes next? Both sides now have ten days (that is, until 20 February) to file a request that the Ninth Circuit rehear the matter en banc, in a panel of eleven instead of three judges. If nobody makes such a filing, shortly after that the mandate will issue, which officially sends the case back to the District Court for further proceedings. There is also the possibility of a petition to the Supreme Court for certiorari, within ninety days. Thus, I expect no trial activity before the end of the summer, and depending upon other motions not even then; and there always remains the possibility of settlement.