Despite Demise of Real Property, Intellectual Property Doing Fine

As predicted in this space, the Supreme Court has ruled against Grokster, according to the AP. Says Justice Souter, “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

UPDATE: SCOTUS Blog puts it very nicely:

Given some ingenuity, both in software design and in marketing tactics, it is conceivable that digital file-sharing technology — available free — may yet be quite legal. …

The technology alone, Souter made clear, does not by itself run afoul of the copyright laws. …

What counts most of all, it is apparent, is that a software developer promote the use of the product explicitly to stimulate computer users to use the product solely or at least primarily as a copyright- infringing mechanism. The Court, while not finally deciding that there was contributory infringement by the software developers in this case, found what it called “unmistakable” proof that an “unlawful objective” did exist.

(Scott Ott also hit on the irony of today’s decisions in light of last week’s Baathist takings decision.)

UPDATE: Information Wants to Be Stupid Dept.: This item on Boing Boing says the Supreme Court has invented a “new thought crime” by focusing on intent in deciding if a legal wrong has taken place — a concept that is actually several millenia old. This is the kind of silliness that gives skulls full of mush a bad name.

UPDATE: Oh, the wailing! Oh, the gnashing of teef! You know the great irony here? In reasoned discussions of this case as it percolated below last year, many peer-to-peer advocates acknowledged that the lower-court opinions in Grokster were written too broadly, were problematic. To read the reaction on the Net today, however, you’d think the Supreme Court had overturned Brown v. Board of Education — which is a huge mistake for advocates of P2P. If the usual suspects would consider the political – judicial lesson of the Roe v. Wade subculture and temper their panic, acknowledge that the Grokster decision (like Roe) opinion was flawed, but fight for a fair rule that supports the view of the world they favor … well, they just might find that moderation has its virtues.