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12.13.2004
Grokster Timing
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Under Supreme Court Rule 25, the petitioners in Grokster, and any amici supporting them, must file their briefs on the merits within 45 days of the order granting cert, which means by January 24, 2005. Opponents then get 35 days.
This will make for a busy holiday season at the IP law firms, since most of the parties who filed on the cert issue will comment on the merits, if only to repeat their arguments.
To add to the legal rush, major tech players -- hardware, software, and telecom -- that were oh-so-silent during the cert process will not want this party to be held without them. This gives the techies 45 days (now down to 42) to figure out where their interests really lie.
They may be tempted to punt, and say "leave it to Congress." Sorry, guys, but this would be a mindless approach. IP is always up to Congress in the end; whatever the Court comes out with, Congress can change it. So "leave it to Congress" means, actually, "let Grokster stand as the default if Congress does not act."
But this position begs the question, which is precisely, "what should the law be, failing further action by Congress?" Anyone who wants Grokster to stand needs to come up with better arguments than an appeal to Congressional supremacy.
Clearly, the destruction of IP implicit in accepting Grokster as the default standard is not in the interests of the tech industry. Jonathan Schwartz of Sun once noted: "[A] server without an operating system is a space heater." And the same is true of a DVD player, TV, broadband connection, or other gizmo without content.
posted by James DeLong : 12/13/2004 01:44:09 PM
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