IV. Predictions On The Result In The Supreme Court cont'd

Given the method of infringement at issue here, which would have been unimaginable by most when Betamax was decided more than 20 years ago, it is certain that the Court will refine its ruling. Less certain, but I believe highly probable, is that its opinion will be more in line with the Seventh Circuit than with the Ninth.

Any prediction on specifics ranks as guesswork, but the Court will likely find that secondary infringement, either contributory or vicarious, can apply in such cases with some restrictions. It will attempt to establish standards for the availability, kind, and level of knowledge that infringement is occurring before liability can be found. The degree of probability, if not proof of actual intent, that a program will be used primarily for infringing purposes may also be a consideration. The Court may further attempt to set some standard for comparing actual noninfringing use and infringing use of a particular program, although it is unlikely the Court will set a bright-line cut-off point. Any decision that results in potential liability will almost certainly provide for an escape hatch for providers if they take reasonable steps to curb infringement.

The purpose of all this will be to provide some protection for holders of copyrights and at the same time provide protection for legitimate uses of P2P. The danger that the Court will see and attempt to avoid in any decision that reverses the Ninth Circuit is that it could lead to frivolous litigation against P2P providers engaged in legal endeavors. An analogous example of the balancing act the Court will have to perform in this regard is found in First Amendment cases, which permit reasonable limitations on the time, place, and manner of speech if there is a compelling government interest. Limitations cannot be so broadly adopted or enforced that they would chill the permissible exercise of free speech.

Unless the Court affirms the Ninth Circuit, thus closing the door on the issue, the ultimate outcome is probably years away. If it reverses the Ninth Circuit, the case will find its way from District Court to the Court of Appeals and to the Supreme Court again, perhaps several times before it is finally resolved. Out of court settlement of the case is not likely because a settlement would apply only to the defendants here. The plaintiffs will want a court decision that will provide precedent for use against other P2P providers.

And, of course, if the final decision effectively sounds the death knell for file sharing as we know it today, it will not close the book on the issue. Many thought, some might say foolishly, that with the demise of Napster and programs like it, sharing of music and movies would be severely curtailed. It is of course more rampant than ever, due to the imaginative resourcefulness of developers and users. There is no reason to think that they will not meet the new challenge if the defendants in this case are forced to shut down.

Endnotes