Grokster (2): It's Civil Procedure, Not Copyright

(Copied from SCOTUSBlog with some fairly substantial expansions) I already jumped the gun a bit on one critical aspect of the decision, because I'm coming at it from an "impure" viewpoint. I don't think Grokster is purely a copyright matter: It's at least as much a question of civil procedure as it is of copyright—as was Ellison. We need to keep in mind that this is a decision on summary judgment, which means that the courts are not supposed to be making any credibility determinations or weighing any evidence. Although I haven't seen the actual record, my experience in Ellison leads me to believe that there is probably a lot of relevant information that is not reflected in the opinions. Nonetheless, I think that even what appears in the opinions makes summary judgment somewhat questionable: A reasonable jury could (not necessarily would) decide that the "software providers," the "network providers," or both are either vicariously or contributorily liable (or both). Of course, that just points toward the question of what "vicarious" and "contributory" copyright infringement are. I think those unfortunate (and potentially misleading) terms, but nonetheless they're what we have to work with.

Apparently, Justice Stevens (for the Court) and Justice Ginsburg (for herself, Chief Justice Rehnquist, and Justice Kennedy) agreed with me. Justice Stevens said:

There is substantial evidence in MGM's favor on all elements of inducement, and summary judgment in favor of Grokster and StreamCast was error. (slip op. at 24)

"Substantial evidence in [a party]'s favor" is ordinarily supposed to be enough to deny summary judgment against that party, at least if the evidence relates to the legal theory at hand.¹ Justice Ginsburg was even more pointed, beginning her opinion:

I concur in the Court's decision, which vacates in full the judgment of the Court of Appeals for the Ninth Circuit, and write separately to clarify why I conclude that the Court of Appeals misperceived, and hence misapplied, our holding in Sony. There is here at least a "genuine issue as to [a] material fact" on the liability of Grokster or StreamCast, not only for actively inducing copyright infringement, but also or alternatively, based on the distribution of their software products, for contributory copyright infringement. On neither score was summary judgment for Grokster and StreamCast warranted. (slip op. at 25, citations omitted)

But this is not the only "civil procedure" aspect of the case. Some commentators are already claiming that footnote 12 might turn out to be as notorious a source of further litigation as the evil, vengeful, badly conceived and written footnote 4 of Carolene Products. Footnote 12 of Justice Stevens's majority opinion reads:

Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor. (slip op. at 22)

However, the two footnotes are not even close in scope. The note in Carolene Products concerns methods of statutory and constitutional interpretation, and essentially says "We don't have to lay out a method of interpretation for all time, because different pieces of legislation must be judged on their own terms (and methods of interpretation and precedent will change over time, even though we're not going to admit that here)." The note in Grokster, however, is far, far narrower: It points out that absence of one type of evidence would fail to support one particular theory of copyright infringement if all that was at issue was the technology ("progress") itself.

Yes, footnote 12 is going to provide a lot of grist for law reviews and outraged statements. It is not, however, going to have a whole helluva lot to do with the behavior of various parties, or the conduct of lawsuits, or the further development of copyright law itself. By making this essentially a civil procedure case, the Court has taken it away from some of the most-emotional "innovation is the only goal worth striving for, and all means toward greater dissemination of innovations are necessarily good" assertions that some of the more-extreme IWTBF crowd² espouses. What footnote 12 really does is make a court look at the entire context, not just individual pieces of evidence. This is disturbingly parallel to the multifactored "fair use" test in 17 U.S.C. § 107; it should surprise no one that Justice Souter wrote the last major opinion on fair use…

The other "civil procedure" issue to consider is, rather, one that the Court did not: Nowhere is there an attempt to "deconflict" Aimster. It is cited once, in a throw-away fashion, in Justice Stevens's opinion for the Court; it is cited once more, in Justice Ginsburg's concurring opinion, in a footnote merely comparing Aimster with Napster; it is cited twice in Justice Breyer's concurring opinion (once at the beginning of a string citation, once as a useful contrast that is virtually thrown away). Thus, any continued assertion that certiorari was based on a "circuit split" needs to somehow face up to the lack of an apparent acknowledgement of such a split in all three opinions. All three opinions treat Aimster is if it is a somewhat related, but distinctly different, matter (both theoretically and contextually).

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1. Fed. R. Civ. P. 56.
2. "Information Wants to Be Free". Leaving aside whether something that is inchoate, inanimate, and incoherent, like "information," wants anything at all, remember that the IP Clause deals not with "information" itself, but with those who create it. If information wants to be free, authors and inventors want to be paid. After all, "starving artists" push up a lot more daisies than sonnets.