SIVACRACY.NET

Many of us have been waiting weeks for the U.S. Supreme Court to rule in MGM v. Grokster, which considers whether companies that distribute technologies that encourage copyright infringement (like the computer on which you are reading this and the network that send you the data) shall be be liable for contributory infringement, even if they have "substantial non-infringing uses."

Contrary to popular belief, the case is not really about peer-to-peer file sharing. Peer-to-peer file sharing will continue to grow whether or not the Court rules against one company. Short of shutting down the Internet or outlawing search engines, there is nothing any law or ruling or device or digital rights management scheme can do to stop peer-to-peer file sharing. The truth is that peer-to-peer is the Internet and the Internet is peer-to-peer. If you have a problem with peer-to-peer, you have a problem with the Internet.

The case is really about whether the entertainment companies will be able to dictate terms to technology companies and to individuals like you and me.

In other words, the court is deciding whether its 1984 decision that legalized the VCR (barely, 5-4) should stand as is or should be refined and narrowed. It's a tossup, as far as anyone can guess.

Anyway, the ruling was expected on Monday. Then again today. It looks like it will have to be NEXT Monday instead, the last day of this session.

However, the court found the questions about the VCR so difficult and complicated back in the 1980s that they delayed their ruling and requested more oral arguments before ulitmately ruling in favor of us. The justices had a fascinating back-and-forth debate with drafts and memos. They took seriously the idea that Congress had not explicity allowed private, non-commercial copying, yet had in some cases stopped short of explicitly forbidding it.

The result was never certain, yet its ramifications have been powerful. It granted enough confidence to technology firms that the digital revolution could grow without excessive fears of copyright litigation (although there were some exceptions).

For a great account of how we got here, read this article by Jessica Litman.

When the ruling DOES finally come out, check out this amazing group blog of brilliant law professors who will analyze the issue from all angles and persuasions. These are some of the finest minds in IP scholarship.

Or, if you want a less sophisticated and less intelligent analysis, you can read what I am going to write on Salon.com.