Are We Talking About the Same Case Here?


Kermit Roosevelt:

When the Supreme Court considered a copyright case involving the latest file-sharing methods in 2005, Souter’s opinion for a unanimous court showed a deep understanding of peer-to-peer Internet applications. It has won praise from both the legal and the high-tech communities.

Oh, you mean Grokster? See, the way I remember that case is that the Court split so badly on the legal issue before it—whether Grokster was capable of substantial noninfringing uses—that it simply ducked the question entirely. I also remember that the opinion was unanimous in name only, since it featured two “concurrences” profoundly at loggerheads with each other over the issue Souter’s opinion didn’t tackle. And I also remember that the criticism of the opinion from the copyfight side of the legal community was outweighed only by the criticism of the opinion from the high-tech community.

I understand the loyal law clerk’s desire to praise his retiring judge. And I agree with him that Souter has been an excellent and underappreciated Justice. But if there’s one thing Souter’s own work would never contain, it’s this sort of effusively inaccurate troweling.


James, I totally hear what you’re saying. However, I’ve now taught the Grokster opinion several times, and I remain impressed by Souter’s careful drafting to resolve the problem on his desk without excessive collateral damage. And although we’ve seen a few inducement claims, the opinion has hardly been a watershed for copyright law. As a result, I would personally rank this opinion as one of Souter’s more successful ones. Eric.

Post a comment



You can use HTML style tags or Markdown.


Comment Preview: