shouting loudly

In an op-ed in yesterday’s New York Times, Stanford law professor Lawrence Lessig describes the legal uncertainty surrounding the Viacom suit as impending “copyright chaos.”

Lessig blames the 2005 Grokster decision for inviting Viacom’s lawsuit of YouTube. The Supremes overstepped their bounds, usurping Congressional authority to damn new technologies, heightening the risk for innovators and reducing our overall tech productivity, he argues. It’s even more irresponsible as Congress was already considering the INDUCE Act, which was similar to the case law set out in Grokster.

I agree with the effects, and I also agree Grokster had an important relationship with INDUCE. However, one expert I know explained that, were the push behind INDUCE sincere, it was totally incompetent. Rather, it was more likely a hypothetical threat, leverage to force the Supremes’ hands.

Congress is a far friendlier venue for copyright holders than are the courts. Thus, the Supremes might have been scared to apply Sony and refuse to impugn the P2P operators. That would have better upheld the previous precedent; Sony explicitly invited infringing uses of the VCR in its early ads, and all P2P networks were and are used for noninfringing purposes.

Nobody who could do so would ever confirm this, but I’ve long suspected the Grokster decision was motivated at least in part by the fear that we might have gotten something far worse. Which says something about the state of copyright politics.