Yaman Akdeniz, the director of [UK-based activist group] Cyber-Rights and Cyber-Liberties, said that the judgment would simply increase the exodus of users moving to alternative file-sharing applications. "The number of users on Kazaa is already going down ever since it started to be targeted," he said. "If you put a successful copyright filter on it, there won't be anything left because most of the swapping done there is illegal." However, he said the ruling was unlikely to stop file-swapping altogether, adding: "The legal system is slow and always lagging behind the software development."
(fake paragraphing removed for clarity) The real problem here, though, is not copyright.
It never was.
It was always antitrust. It always will be antitrust. Unfortunately, thanks to the "revolution" in antitrust doctrine wrought by the ideologues who surrounded that guy from Death Valley Days in the 1980s, it's now needlessly hard to demonstrate—and even harder to get started. The irony that this fall, the Supreme Court—under the new Chief Justice, whether that is Acting Chief Justice Stevens or (potentially) a new Chief Justice Roberts, dragging Justice O'Connor along for the ride since her resignation is not effective until a successor is confirmed—will be considering the intersection between patent and antitrust is not lost on me, even if nobody in the media seems to have picked it up.
Whether, in an action under the Sherman Act, 15 U.S.C. § 1, alleging that the defendant engaged in unlawful tying by conditioning a patent license on the licensee's purchase of a non-patented good, the plaintiff must prove as part of its affirmative case that the defendant possessed market power in the relevant market for the tying product, or market power instead is presumed based solely on the existence of the patent of the tying product?
Yes, this is another example of a poorly written shopping list; a better question would have been "May an unlawful tying claimant, 15 U.S.C. § 1, presume without further proof that the defendant has market power based on ownership of a patent concerning the product to which unlawful tying is claimed?" Of course, things are a bit harder when dealing with copyrights. If a collective work, such as a CD by, say, Metallicock, is the only legal way to obtain a recording of the megathrash dance hit "French Quarter French Kiss," is there a valid tying claim against Megacorps Records for the other eleven songs that one must pay for, but nobody wants to hear—especially if the record producer (and not the band) selected the contents of the CD?
You don't really think I'd start a holiday Monday off with an easy rhetorical question, do you?