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.