Wednesday, February 4, 2009

BREAKING: Plaintiffs didn't 'win' Grokster Supreme Court case

Reacting to the news of Jenner & Block partner Don Verrilli's move to DOJ, the Excess Copyright blog described the appellate specialist as follows:
Donald Verrilli, of Jenner and Block, who fought and won the Grokster case for the music industry in the US Supreme Court along with many other important caess, has been named as associate deputy attorney general.
Accurate and unobjectionable, no? Well, not to Ray Beckerman at Recording Industry vs. The People! Writes Beckerman, an attorney and vehement industry critic:
I take exception to the statement that Verrilli "won" the Supreme Court Grokster case; the Grokster decision (a) set the bar very high for secondary copyright infringement, and (b) merely denied summary judgment to the defendant, but did not award victory to the plaintiffs. Thereafter Grokster settled, and Streamcast lost in the lower court.
You read that correctly: Verrilli didn't actually "win" in the Supreme Court. Hmm. I remember things a bit differently. Let's go to the .pdfs:
A large group of copyright owners sued Grokster and a company called StreamCast Networks.

The District Court granted summary judgment to defendants.

The Ninth Circuit affirmed the grant of summary judgment to defendants.

Defendants hailed their "landmark win." Plaintiffs were sullen.

The Supreme Court took the case, reversed the grant of summary judgment 9-0, and articulated a new standard for secondary copyright liability based on inducement of infringement -- a standard very favorable to copyright owners.

Plaintiffs were over the moon. Defendants weren't.

Grokster settled with plaintiffs, reportedly agreeing to pay $50 million and shut down its service.

The District Court issued an injunction in favor of plaintiffs and against StreamCast.
So who "won" in the Supreme Court? Are we seriously even having this discussion?

(Disclosure: I represented several of the plaintiffs in the Grokster litigation while an associate at O'Melveny & Myers.)

1 comment:

  1. I take exception to the statement that I've "lost" that loving feeling. While I inarguably no longer possess that feeling vis a vis you as an individual, the location of said feeling is still known to me.


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