Comments on: Book Review: The Nine http://blogs.law.harvard.edu/infolaw/2007/10/25/the-nine/ Information, Law, and the Law of Information Tue, 24 Nov 2009 00:08:14 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: Jim Mirkalami http://blogs.law.harvard.edu/infolaw/2007/10/25/the-nine/comment-page-1/#comment-45363 Jim Mirkalami Fri, 08 Feb 2008 03:40:13 +0000 http://blogs.law.harvard.edu/infolaw/2007/10/25/the-nine/#comment-45363 I have been visiting this site for a while now, so i thought would be proper to at least be grateful for the superb job you are doing. Thanks, Jim Mirkalami I have been visiting this site for a while now, so i thought would be proper to at least be grateful for the superb job you are doing.

Thanks,
Jim Mirkalami

]]> By: Mark McKenna http://blogs.law.harvard.edu/infolaw/2007/10/25/the-nine/comment-page-1/#comment-23024 Mark McKenna Fri, 26 Oct 2007 16:56:39 +0000 http://blogs.law.harvard.edu/infolaw/2007/10/25/the-nine/#comment-23024 Bill - The same passage stuck out to me (for obvious reasons). And on top of not being able to praise Grokster for "clarity, universal support, or economic sophistication," he doesn't even state the holding of the case correctly. Software makers are not only liable when they take "affirmative steps to encourage infringement" - though they are liable when they do that. They are also liable if they create software with no substantial non-infringing uses (whatever "substantial" means). Bill -

The same passage stuck out to me (for obvious reasons). And on top of not being able to praise Grokster for “clarity, universal support, or economic sophistication,” he doesn’t even state the holding of the case correctly.

Software makers are not only liable when they take “affirmative steps to encourage infringement” – though they are liable when they do that. They are also liable if they create software with no substantial non-infringing uses (whatever “substantial” means).

]]> By: Tim Armstrong http://blogs.law.harvard.edu/infolaw/2007/10/25/the-nine/comment-page-1/#comment-23021 Tim Armstrong Fri, 26 Oct 2007 15:11:12 +0000 http://blogs.law.harvard.edu/infolaw/2007/10/25/the-nine/#comment-23021 Thanks for the book review, Bill! This is on my reading list for the holiday break, but I'm disappointed by the example you have cited. This looks like mere sloppiness on Toobin's part; he's a smart enough guy to be able to tell a real unanimous decision (that is, one that rests upon broad substantive <b>agreement</b> among the justices) from one that's only <i>pro forma</i> (that is, one that papers over pretty broad substantive <b>dis</b>agreements among the justices by adopting the lowest common denominator). <i>Grokster</i> is pretty clearly in the latter category, as the Ginsburg and Breyer concurrences demonstrate; at the end of the day, it's not a 9-0 decision so much as a 3-3-3 decision, which does little to provide guidance to lower courts and, even more important, to technology designers. Justice Souter should, indeed, be worried if <b>this</b> is the case on which his reputation is ultimately going to ride. I'd nominate <i><a href="http://laws.findlaw.com/us/510/569.html" rel="nofollow">Campbell v. Acuff-Rose</a></i> instead; anyone else have a suggestion? Thanks for the book review, Bill! This is on my reading list for the holiday break, but I’m disappointed by the example you have cited. This looks like mere sloppiness on Toobin’s part; he’s a smart enough guy to be able to tell a real unanimous decision (that is, one that rests upon broad substantive agreement among the justices) from one that’s only pro forma (that is, one that papers over pretty broad substantive disagreements among the justices by adopting the lowest common denominator). Grokster is pretty clearly in the latter category, as the Ginsburg and Breyer concurrences demonstrate; at the end of the day, it’s not a 9-0 decision so much as a 3-3-3 decision, which does little to provide guidance to lower courts and, even more important, to technology designers. Justice Souter should, indeed, be worried if this is the case on which his reputation is ultimately going to ride. I’d nominate Campbell v. Acuff-Rose instead; anyone else have a suggestion?

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