As the commentary has built up throughout the day, one dominant theme seems to be that the ruling today was a partial victory for both sides. According to this emerging wisdom, the studios now have a clear shot at winning this particular case, and innocent innovators can feel secure that they will not accidentally trip the Court's threshold "clear expression" or "affirmative steps" requirements.
The more I read, however, the more I think this looks like a loss for everyone -- or, worse, everyone except the determined bad actors.
Start with those bad actors. As I posted this morning, determined bad actors now have what Fred von Lohmann rightly calls a roadmap. Just keep the message clean ("who? us? our technology is designed to facilitate the exchange of Shakespearean sonnets!") and inducement is no risk.
Turn now to the studios. Copyright infringement will continue as before so long as willing users can find the technologies they need. As Lior argues, there is good reason to think they will. College students will be pretty good at finding those Shakespeare-sharing networks and using them to swap more modern fare.
And what of the legitimate technology firms? Here Rebecca Tushnet fits. As Rebecca smartly explains, legitimate firms are in trouble because honest advertising can easily be construed as inducement. Read in light of today's opinion, for instance, a laywer should translate Apple's "Rip. Mix. Burn." into a simple "Sue. Me. Now."
The silver lining here might be this: the studios and the legitimate technology companies might now have an incentive to team up and offer licensed services. That would protect the technology firms from the legal risk Tushnet discusses; and it would give the studios a legal alternative that might lure consumers away from the pirate networks.
Isn't the silver lining called "iTunes?"
Posted by: Tim Wu | June 27, 2005 at 04:13 PM