Monday, April 12, 2010

Supreme Court Justice Sidney Thomas?

Dear entertainment industry:

How do you feel about the judge who wrote this occupying a seat on the Supreme Court?


  1. Thanks, now he has a new fan, me.

  2. Since it took an activist SCOTUS to create new law in order to decide Grokster, I'm not sure one should deride the 9th Circuit opinion, which simply applied the law of the land at the time.

  3. @Anonymous 11:31:

    I'm not sure what you mean by "create new law." The Supreme Court said the 9th Cir. misinterpreted Sony-Betamax and the pre-existing law of secondary liability (which had recognized inducement for decades).

  4. He seems to me like a judge who understands intellectual property law. After following this blog for a couple of months now, it also seems like Ben's ideal candidate would be Jack Valenti

  5. Keep in mind that whoever the new Justice will be, he/she will be replacing Justice Stevens, who clearly has the best record on IP cases among those on the Supreme Court.

    When I say "best", I mean one who supports rational and concrete limitations on the scope of IP laws - far more limitations than the apparent preferences of Ben Sheffner/Jack Valenti, et al.

    Stevens signed on to the important Grokster concurrence which held at its core that Grokster-like technologies should remain legal, with the caveat that they can potentially be held liable for "inducement" if actual concrete evidence proves that they actively encouraged copyright infringement.

    Stevens wrote the majority opinion of Sony to begin with - actually convincing others to join him in a decision that had been poised to go the other way initially. [Imagine the disaster to this country had that not taken place.]

    Stevens wrote the important dissent of Eldred v. Ashcroft - arguing that a retroactive extension of IP terms should be unconstitutional.

    He has also consistently argued for rational limits on the scope of patent protections.

    He wrote the Parker v. Flook opinion which argued that mathematical algorithms should not be eligible for patents.

    He then dissented in Diamond v. Diehr, arguing against software patents.

    Regretfully, its doubtful that any replacement will be much better than Stevens when it comes to the area of IP law. In that sense, the "entertainment industry" will no doubt be happy, regardless of who the replacement is.

    With all of that said, Sidney Thomas's decision in the Grokster appeal seemed well reasoned. The Supreme Court should have signed on to it and affirmed the broader implications of the Sony decision.


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