In the United States Court of Appeals for the Ninth Circuit
This week, I went to the 9th Circuit's Pasadena venue with Wendy to hear oral argument in MGM v. Grokster.
My colleague Fred von Lohmann, representing the publishers of the Morpheus file-sharing software, did a simply brilliant job. It's exciting to hear Fred talk about the Betamax doctrine (in person or in court). He should get a television show where he just discusses the Betamax case.
Particularly gratifying was Judge Noonan's view of the subtlety of copyright questions. When a music industry lawyer directed a lot of rhetoric against file-sharing networks, Noonan became impatient and tried to bring the discussion back to the law:
Let me say what I think your problem is. You can use these harsh terms, but you are dealing with something new, and the question is, does the statutory monopoly that Congress has given you reach out to that something new? And that's a very debatable question. You don't solve it by calling it "theft". You have to show why this court should extend a statutory monopoly to cover the new thing. That's your problem. Address that if you would. And I have no use for this abusive language.
(Transcription adapted from Copyfight's, based on the 9th Circuit's audio recording.)
As we walked out of the courthouse, the rain stopped and a rainbow appeared in the sky -- the first time in my whole life that I saw a complete rainbow from the ground. It was beautiful. Someone even got a picture of Fred standing under it.
In describing the argument to a friend, I couldn't resist extending my Fair Seuss poem a little:
I subsequently got to see
(in ancient halls in Pasade-
na) argument about M.G.-
M.'s case for contributory
infringement, heard before just three
of judges on the vast 9th C.:
the question, whether knowingly
providing "tools of piracy"
(they call them that, and sneeringly,
but I think it's just "P2P")
gives rise to liability,
absent a capability
to know whether each MP3
infringes on someone's copy-
right -- or if we are truly free
to use the freedoms of Sony.
The cause was argued brilliantly
by Fred, a senior attorney,
who, before all the gallery,
set forth the many policy
reasons why the whole history
of that case and of law decree
a judgment for the appellee.
To which I might add, with regard to the rainbow: "(It seemed the powers in heav'n agree.)"
