I’m gathering Grokster links for next week. Grokking Grokster by Quinn Norton:
Much of this decision picks up qualities of patent law and puts them into copyright law. Given the lack of direction regarding remedy by the Supreme Court, it’s interesting to look at the nature of remedy in similar patent cases. While most recent copyright cases have famously focused on damages, huge damages (and in the case of one student, damages around $97 billion), patent cases usually focus on injunction. In other words, if you lose your case you just have to stop doing the thing that started the case off.
Professor of Law at the University of Chicago, Doug Lichtman, a legal scholar who filed Amicus in favor of MGM, is excited by the idea that injunctions could provide a better answer than damages. “That might be a fantastic thing for copyright; I’m much less chilled if I’m only going to be told to stop it already, rather than pay the music companies.” Then losing a lawsuit means the technology is a no go rather than total financial ruination, and no-go technology is hardly a new thing for the industry. But it remains to be seen. A judgment without damages doesn’t satisfy some observers. “Grokster ought to write a check. They ought to stop what they’re doing, but they ought to write a check,” says Randy Picker. But neither an injunction nor damages can have much effect on a technology genie that’s already out of the bottle. Distributed technologies ruled illegal are for most purposes unstoppable after release. Then the only answer is more technology, which the malware/spam arms race has shown to be no panacea.