A Copyfighter’s Musings

As I said before, this could be extremely bad.  Ernest’s dead-on - if the Supreme Court takes this one, that does not bode well for the continuing vitality of Sony.  I also agree that the SC is unlikely to take this up, because even had Posner actually followed Sony via Napster, he would have come to the same result.  One could argue that, because Posner’s opinion was so flawed, there are more issues that the SC would be willing to take a look at.  Certainly, Posner took liberties with Sony - the pseudo-negligence rule he adopted contradicts the hybrid technical and user capability standard in Sony (see previous posts here and here for more explanation).  But, almost the entire opinion is dicta, so I doubt the Court will have any interest in it.  No bad precedent has really been set, because the holding was quite simple: if you have no substantial non-infringing uses, then you don’t fall under Sony.  In practice, Posner’s dicta is important – both sides of the Grokster appeal are citing to it.  Still, the SC won’t waste its time dealing with that.

Filed by Derek Slater at 4:25 pm under General news
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I must confess: I have yet to get through the entirety of the FCC’s gargantuan Order.  I have been trying to keep abreast of others’ analyses and excerpting of key parts We know it’s not really going to affect piracy and it’s going to cripple production and consumers uses of digital TV equipment.  But precisely how bad have we been screwed?

Professor Felten goes through his Broadcast Flag scorecard, and comes to the conclusion “The FCC’s order will be harmful; but it could have been much, much worse.” Sure.  But, reading Felten’s entire post, I thought he would have ended by saying, It’s bad, and it could get a lot worse as the FCC sorts out these details.  I have little reason to be optimistic at this point.

But forget what they might say – I can’t even discern what they already said.  SethF points out that the FCC wants to protect open source software defined radio; however, it seemed that open source does not gel with the FCC’s robustness requirements (as described here).  Aren’t they still, as the EFF argued in its comments on BPDG, still not tamper proof?  I noted in my brief skim of the Order that the FCC brought up distinguishing software, but how far does this go?

And Ernest’s checking out a possible loophole regarding exports.

In any case, I’ve got more reading and thinking to do on this. So, keep reading the great analyses out there, go back to the Order, then ask a friend, then back to the primary sources, rinse, repeat.

Filed by Derek Slater at 3:46 pm under General news
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