Ever since the US Supreme Court agreed in December to hear the entertainment industry's case against the file-sharing software companies Grokster and Streamcast, armchair legal experts have been casually wagering on the outcome. The case pits copyright holders against those who fear a stifling of technological innovation. With the court poised to weigh in, perhaps as early as Monday, all sides have been getting edgy.
Not surprisingly, technophiles siding with Grokster have been most vocal on Internet forums and Web logs. But among those willing to make predictions, whether authors of Grokster-supporting briefs or mere spectators keeping watch on the case as they download Batman Begins, pessimism prevails.
Most believe that the Supreme Court will send the case back to the 9th US Circuit Court of Appeals, which upheld a lower court's decision against MGM and its fellow petitioners last August. Others think the justices will side cleanly with the industry. Only a plucky minority said the high court would unequivocally side with the software companies.
If the seers have not already been proved sage or foolish -- the Supreme Court typically issues decisions on Mondays about 10am -- they soon will be. A selection of those bold enough to predict the outcome follows.
The discussion has penetrated some unusual corners of the Internet, including the newsgroup rec.sport.pro-wrestling. That's where Don Del Grande, a civilian computer programmer for the US Navy, made this pointed observation:
"Grokster, unlike Napster, doesn't use a central database to save information on who has what, which is probably what will make Grokster legal in the end. Besides, even if Grokster was declared illegal, what would be next -- banning e-mail because it is possible to send illegally obtained music files as attachments?" he said.
Of course, that slightly mischaracterizes the debate, which hinges not on the legality of peer-to-peer file sharing, but on whether makers of file-sharing software are liable for illegal copying by users. Lower courts have held they are not, but Eric Goldman, a law professor at Marquette University who maintains a "Technology & Marketing Law Blog" predicted a reversal of those decisions -- and potential legislation.
"What will the court say? We're all on pins and needles!" he said.
"I've heard lots of predictions. Predicting Grokster has turned into a modern-day parlor game. I don't have any special insight, but FWIW, here's mine: Supreme Court reverses the Ninth Circuit, but writes a narrow opinion that effectively limits itself to the Grokster facts," he said.
"Whatever the Supreme Court rules, I further predict that Grokster -- and all of us -- lose eventually. Either the Supreme Court reverses the Ninth Circuit or I predict that Congress will reverse the Supreme Court statutorily," he said.
Gerald Smith, a lawyer and frequent contributor to the technology forums at ABXZone.com, also wagered on a reversal:
"I believe the Supreme Court will reverse the Ninth Circuit and the case will wind up in the district court for further proceedings. It is important to note that if the court does indeed reverse, that does not mean the plaintiffs have won. It will simply mean that the summary judgment will be vacated and the case will proceed, perhaps to trial," he said.
But last month, on the Volokh Conspiracy Web log (volokh.com), David Post, a professor of law at Temple University and the author of a Grokster-supporting brief submitted to the Supreme Court, reversed an earlier prediction he had made for, well, a reversal.
"A few months ago I fearlessly predicted that the Supreme Court would side with the entertainment industry plaintiffs, reverse the Ninth Circuit, and find Grokster liable for inducing copyright infringement. Maybe I've just talked myself into it, but I think my initial prediction was wrong," he said.
"I don't think the court will be able to reach the question of whether Grokster can be liable for inducement -- actively encouraging, through advertising or otherwise, others to infringe copyright. That leaves just the question of whether distribution of its software, alone, can be considered contributory infringement. On that question, I think the court's going to get it right," he said.
And a few bold sorts simply predicted a slam-dunk for the Grokster team.
Don Snyder, a student in a course titled Information Technology and the Law at Princeton University, argued on the class Web log that a 1984 Supreme Court decision, which held that the Sony Betamax videocassette recorder had substantial legal uses, even if individual consumers used it to copy movies illegally, provides a compelling precedent; the Grokster lawyers have argued that, too.
"Having reviewed its central contentions, compared it with petitioners' claims and arguments, and balanced it against the weight/direction of Sony and subsequent rulings, I predict, unequivocally, that the court will not side with petitioners," Snyder said.
But Snyder's instructor at Princeton, Edward Felten, a frequently read blogger, was less enthusiastic. At his Web log, freedom-to-tinker.com, Felten predicted that the court would leave the whole issue muddy.
"The Supreme Court's Grokster decision won't provide us with a broad, clear rule for evaluating future innovations, so the ball will be back in Congress' court," he said.
None of this, of course, will matter to avid downloaders in the end. Peer-to-peer file sharing will rage on, via endless permutations of open-source, anonymous, non-profit-seeking software -- even in a Groksterless world. That might suit just fine "littlelisa," a file-sharer who reviewed Grokster's product at Download.com earlier this year:
"Pros: It's no longer on my computer.
"Cons: Infected my computer with the most spyware I've ever had. Crashed my computer multiple times and made things so complicated I had to have my whole hard drive wiped clean. I want the creator of Grokster tied down and repeatedly poked with pointy sticks. That is all," she wrote.
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