Information Technology and the Law

I feel some need to sum up what I have observed this semester, and find Dan Burk’s comments in “Jurisdiction in a World without Borders” especially appropriate:

As humankind enters the 21st century…the advent of global computer networks has rendered geographic boundaries increasingly porous and ephemeral…

As the community of Internet users grows increasingly diverse, and the range of on-line interaction expands, disputes of every kind may be expected to occur…federal legislature has begun paying some attention to the network, and state regulators seem equally anxious to leave their mark on the burgeoning field of “cyberlaw”…

Of course, even without the enactment of new laws or regulations, there are already on the books plenty of laws that states might apply to the Internet…

By contrast, the Attorney General of Florida, has opined that because of the novel nature of the Net, forays into on-line enforcement of current law would be premature.

The wisdom of the Florida position becomes apparent when the nature of the Internet is carefully considered. The Internet extends beyond the boundaries of any of the states, and the effects of state regulation will likewise spill over state borders. Such regulatory leakage implicates constitutional doctrines designed to preserve both the sovereignty of the individual states and the coherence of the United States as a whole. The prospect of states applying haphazard and uncoordinated multi-jurisdictional regulation to the Internet’s seamless electronic web raises profound questions regarding the continued growth and usefulness of this medium. And, given the international nature of the network, even centralized federal attempts at regulation raise grave questions regarding international sovereignty and jurisdiction.

Though Burk largely intended to address jurisdiction in his remarks, they apply well to some of the “thornier” issues that we have raised this semester. As diverse as these issues appear they share one central tenet: namely, they all stem from a failure to recognize the “novel nature of the Net.”

For example, Burk cites federal legislation which seeks to “leave [its] mark on cyberlaw.” Certainly no one would argue that the Federal government does not have a legitimate interest in setting uniform internet legislation. Yet, as Burk alludes to, some of this legislation fails to situate itself within the context of the very thing it seeks to legislate – namely, the ever expanding national and international web community. We discussed two prime examples of this already: the Digital Millennium Copyright Act (DCMA) and the Computer Fraud and Abuse Act (CFAA) – both of which have perverse, if perhaps unintended externalities for the web (and academic) communities (to name two).

Yet, the federal government is not alone in this unfortunate state of affairs. State legislatures also seek to influence cyberlaw, further muddying the descriptive record. Again, we addressed several such state legislative conundrums, such as the various “long arm” statutes which claim nearly unlimited jurisdiction under myriad statutes. And as we’ve seen in our discussion of the trespass to chattels doctrine, state legislation can apply different positive standards to the same “netizen.”

As we’ve seen in internet copyright disputes, constitutional issues drive much of the discussion surrounding the internet. While neither “right” is explicitly given precedence, copyright law within the context of the internet pits the “right” of innovators to innovate, versus the “right” of copyright holders to exploit their lawful monopoly. Speech presents another thorny constitutional issue when cabined within the confines of cyberspace. Specifically, the strong protections afforded speech in the “real world” appear inadequately or unevenly applied in cyberspace.

As if these issues were not enough, cyberspace necessarily implicates not just US law, but in fact international law, and the laws of other national sovereigns. Our discussions about the propriety of, and possible alternatives to ICANN amply demonstrated to me how difficult it will be to reconcile the three.

Where does this leave us? These myriad problems all stem from inadequate recognition that cyberspace is, in reality, a new extraterritorial, “extranational” community, which both “exists” in real time and also lacks many elements common to a traditional community (defined borders, perfectly identifiable participants, common standards – or at least some compromise position, legal character, and “real” property). Thus, one might legitimately ask whether or not cyberspace presents as novel a reality as these facts might suggest. In other words, does “cyberspace” actually exist? If so, is it worthy of unique legal character? If yes, how is this legal code to be determined, and perhaps as importantly – by whom?

While recognition of these “novel” elements is essential to any resolution of problematic cyberlaw, mere recognition does not solve the problem. And yet, as Burk suggest, it presents the necessary first step.

Having read and re-read the various posts regarding ICANN, I commend Stacy, Rob, Monte, MRK, Jon, Harlan, et.al., and concur simply by stating that it is fortunate for all who wish to see ICANN change that the Department of Commerce still holds ICANN bound by contract. In the future, I feel it will be necessary for the D.O.C. to retain this relationship as an enforcement mechanism, either by requiring department members to sit on the Board, or perhaps by instituting an annual review process – with decertification provisions for various “non-compliance” actions. Additionally, it may be wise for the D.O.C. to regain control of the actual root servers. With that, I will end my comments regarding ICANN.

U.S. v. Thomas and Reno v. ACLU present no small difficulty in determining exactly what the “informational technology” aspects of the decisions are. Both relate to differing statutes (42 U.S.C. § 1465 and 47 U.S.C. § 223, respectively) and each reaffirms the government’s general interest in circumscribing “obscenity” – hardly a matter of technology, per se.

Yet, lurking beneath the surface of these decisions are potent technology issues. In U.S. v. Thomas the District Court argued that internet “speakers” must be held to the same standard as their real-world counterparts in that both must factor the “community standards” of any and all locations of where they will be effectively “speaking” as part of the calculation of whether their speech constitutes obscenity – irregardless of whether or not the speakers targeted their speech to a particular area. In contrast, the Supreme Court in Reno v. ACLU concluded that a similar approach by the Computer Decency Act (CDA) was “overbroad.” Emphasizing that the third prong of the Miller test, which “critically limits the uncertain sweep of the obscenity definition,” was not to be “judged by contemporary community standards,” the Reno Court chided the CDA for its “vague contours.”

I feel this is a wise application of the Miller test – especially given what we know about the difficulty of targeting internet content to certain locations (recall back to our discussions re: jurisdiction). So long as Congress does not require commercial adult sites to charge for and/or verify all users of their services, adult material purveyors cannot possibly have complete control over who views their sites, and from where. This stands in stark contrast to “real world” adult material providers – storefronts, magazine subscriptions, etc. – each of these things adds a layer of control not necessarily available on the internet. Moreover, as the Court pointed out, it is not wise to have speech standards judged by the community most likely to be offended by the speech, lest speech become proscribed by the least common denominator.

Additionally, Reno addressed speech issues concerning minors. Seemingly, these have little bearing on the internet. In fact, they have direct applicability – if the government is seen to have a general “interest in protecting children from harmful materials,” it is possible that more narrowly tailored statute could require fundamental changes in the availability (to minors at least) of indecent and obscene speech on the internet. See Reno v. ACLU, at 11 (“The Court neither ‘accept[s] nor reject[s]’ the argument that the CDA is facially overbroad because it substantially interferes with the First Amendment rights of minors. I would reject it.”).

Though Reno seemed to make clear that in the context of the internet, a) prurient materials cannot be made “obscene” simply by applying a more stringent community-standard, and b) indecent “as to Adults” materials (as opposed to obscene materials as to Adults) must be allowed to exist in cyberspace, both of these speech protections apply to adults – and, at least for now, adults alone. Were the Court to agree with Justices O’Connor and Rehnquist, in that Ginsberg allows the government to set a lower “obscene as to minors” threshold in cyberspace, much of the indecent and potentially obscene speech on the internet will cease, with possible (but as yet unproven) “chilling” effects on other speech.

While I am, as I’m sure many others are also, quick to judge Microsoft for its perceived monopolistic dealings, I feel a need to address several descriptive and normative aspects of the momentous, and on the whole well-written Appellate decision in USA v. Microsoft Corp. With this being said, and given the scope of the decision, with its very layered and nuanced argumentation, I do not attempt a full-analysis or criticism. Rather, I wish to address but a few issues I believe the Court unfortunately overlooked during its analysis.

First, the Court examines claims of Microsoft’s monopoly in an effort to determine whether or not Microsoft actually behaved as a monopolist. Among the many points within Section II (B)(1)(b), the Court determined that Microsoft’s defense claims against restrictive OEM license agreements “is insufficient to shield Microsoft from liability for those restrictions because, although Microsoft did not bar its rivals from all means of distribution, it did bar them from the cost-efficient ones.” USA v. Microsoft Corp, at 25. On one hand, this behavior seems harshly competitive against competing browser developers (i.e. Netscape). Yet, on the other, it represents a natural competitive advantage which, it seems, Microsoft should be able to exploit - for indeed, many businesses exploit such advantages against their rivals. In order for the Court’s logic to hold, “cost-efficien[cy]” must be stretched to mean “barrier to entry.” I’m not sure this relationship holds - especially in light of the fact that Netscape held a commanding lead in internet browser market share (despite the lack of “cost efficiency”) at the very time this action was begun. See, USA v. Microsof Corp, at 25 (Microsoft desired to “reverse the direction of Navigator’s usage share”). Though bundling and integrating IE into Windows gave IE some advantages over Navigator, Netscape seemed to be very successful in distributing its product - even given the bandwith limitations and hard drive space requirements of the time. As technology advances, bandwith increases, and hard drives become larger, the issues the Court points to as “barriers to entry” seem inceasingly inconsequential. Yet, still, one must be circumspect in absolving Microsoft. More importantly, perhaps, does that fact that distribution costs for internet browsers have been decreasing, or that hard drive storage spaces have been increasing bar Microsoft from aggressively posturing against competing products and systems?

Another problem the Court makes is assuming, it seems without any evidence, that various ISVs, Apple, and IAPs would promote Navigator, if they could, simply because it is a better product technically. This assumption obscures, obviously, that these various entities each have differing commitment levels to supporting Microsoft and its products. In fact, many of these companies (i.e. Apple, Intel, IBM, AOL) compete with Microsoft in various arenas, and may thereby have their own competitive reasons for choosing Netscape as a threat against Microsoft to gain bargaining leverage and/or competitive advantage. Clearly, the PC software and hardware markets share so many points of interconnection and competition that practically no vendor exists in isolation of the others, and each seeks to maximize their own position - often at the expense of their competitors. See, for example, USA v. Microsoft, at 40 (Details quid-pro-quo relationship between Intel and Microsoft, whereby each developer sought leverage against the other through support, or lack therof, of their various products). Thus, we see that “retaliation,” as termed by the Court, is not always a full indicator of monopolistic muscle. Moreover, many compliantly competitive firms engage in similar behavior. Though many seem to idealistically cling to a vision of a completely competitive PC and PC software market, I doubt this actually exists (or ever will).

Ultimately, however, we must also recognize the Court’s initial assertion that technology presents especial difficulty in antitrust law because it may occur that “innovation to a large degree has already rendered the anticompetitive conduct obsolete (although by no means harmless).” USA v. Microsoft Corp, at 8. If these facts truly hold, does and should our fundamental conception of the technological market structure change? I feel this was not adequately considered by the Court, but rather dismissed in favor of a standard structural approach (which admittedly has some merit).

I believe the issues raised in this post represent merely the proverbial “tip of the iceberg” with regard to the wisdom of the Microsoft decision. Not only to other descriptive issues abound, but larger normative questions such as the intrinsic value (or lack therof) of allowing Microsoft to remain such a dominant force, or the propriety of replacing a monopolostic operating system developer with a potentially monopolistic middleware developer. I hope that my thoughts, though largely contrary to what I sense might be the majority view might encourage lively debate regarding these important issues.

I share David St. Hubbins’ frustration with the difficulty of responding this weekend. On the one hand the readings surrounding computer fraud are at this point somewhat lacking in context, and in many more ways lacking depth (as I perceive it). Additionally, our discussion of issues regarding websites as property, trespass, and such have been thoroughly hashed and rehashed.

Picking up his trope, perhaps, I concur that we ought to frame our discussion of the Computer Fraud and Abuse Act in such a way that we might see the potentially dangerous implications of its breadth, for broad and inclusive it certainly is. With that said, I think that applying the Act against disclosure of trade secrets is certainly within the descriptive limits of its language (if perhaps outside the scope of its intent). He finds difficulty with the issue of access and authorization. I might point out that not only does the Act frequently proscribe “intentionally” accessing “a computer without authorization,” but also “exceed[ing] authorized access.” See: § 1030 (a)(1), (a)(2), (a)(4). The latter particularly seems applicable to his case.

With that being said, I reiterate that this Act does not seem to be the panacea that Congress may have intended it to be. For one thing, the relief against the myriad prescribed actions is limited to those who act against (or seek to act against): a) a Government computer, b) a computer used by any financial or banking organization, c) a computer engaged in interstate and/or foreign commerce. This limited definition of “protected computers” does a great disservice to the numerous “netizens” who do not fall into any of these categories, and thereby do not have protection from this act. Normatively, I fail to see how this is fair – to create a dual class of internet users – those whose interests are substantial enough for the government to notice and protect, and those who aren’t. Positively, and barring the application (or misapplication) of the trespass doctrine (which is not criminal in any way – and can only prescribe “real” and “tangible” harm), this leaves the “average user” with few protections from harassment, manipulation, etc., by malicious “outsiders.”

Additionally, the Act is written in such a way that one can be liable for numerous infractions simultaneously – compounding any punishment exponentially. For example, Mr. Morris, had Judge Munson so desired, and had all the provision of the 1996 version of the Act been applicable at the time, could have been liable for violating any and all of § 1030 (a)(3), (a)(5)(A)(i), (a)(5)(A)(ii), and (a)(5)(A)(iii) – being modified, each, by (a)(5)(B)(i), (a)(5)(B)(iv), (a)(5)(B)(v). This could have amounted to a sentence, were he to be tried on each count, of 40-60 years. While admittedly his actions were offensive, and a significant nuisance, I’m not sure that they deserve greater sanction than various forms of murder, assault, theft, etc.

Another perverse result of the Act is that it could potentially prescribes (and severely punishes) rather trivial behavior. For example, had the young Bezenek boys conducted their behavior again, they may have been liable for serious consequences under (a)(4). If they had directed their activities simply towards gaining access to a government computer, without doing any other thing to damage this computer, they would have been liable under (a)(3). Again, their actions are indisputably “wrong” – but not to the level that they could be liable for five or ten years of prison, respectively. See: § 1030 (c )(2)(A), (c )(2)(C), (c )(3)(A), and (c )(3)(B).

Moreover, the definition of “computer” expands this perverse liability significantly. According to § 1030 (e)(1) and (e)(2), a computer could easily encompass any and all of a number of electronic devices used by either the government or “a financial institution,” including IPod(s), Blackberry(s), Palm Pilot(s), and/or cell phones. Though these devices are significantly less “important” and/or sensitive than any “real” computer, actions against them are equally prescribed and punished. Obviously, this has normative problems. Descriptively, it also “cheapens” the Act’s prescriptive force against more “traditional” computer systems.

Having also read the cases for this week, and finding them fraught with all kinds of potential “dialogue” (read debate), I will give my best effort to say something intelligent about them.

I appreciate mdaly’s well-written post “Do Search Engines Skate on Thin Legal Ice?” I wish to respond to several issues mdaly raises. After summarizing a general definition of trespass of chattels, based upon a reading of eBay v. BE, mdaly queries:

Is it legal for search engines to find/cache/display information which authors, who do not necessarily realize their content is being searched, probably [sic] do not want displayed?

Providing an example of “hacking” which allows Google users to search for “obscure files on remote systems,” ranging from “personal documents to password files,” and employing an analogy of an unlocked house to personal computer with such accessible files, mdaly then seems to conclude that there is something normatively or descriptively wrong with the actions of aforementioned search engines.

I wish to address the specific questions/references/example(s) mdaly uses first, and then the larger question of the propriety of search engines’ crawling activities within the context of the trespass doctrine. The example mdaly refers to is intriguing, but in my mind not easily applicable to our specific cases this week. According to eBay v. BE, and citing Thrifty-Tel v. Bezenek, trespass claims must satisfy a two-part test, based upon 1) “intentional” and “unauthorized interference with plaintiff’s possessory interest in the computer system,” and 2) “proximately result[ant]…damage to plaintiff.” eBay v. BE, at 7.

Yet in the example mdaly uses, the presumed defendant Google, does not “intentionally” interfere with any possessory interest, but is rather, itself, “interfered” with by a hacker or hackers. While I do not know the case law in this matter well, I presume that an entity cannot, without some level of sufficient negligence on its own part, be held liable for the effects of tortuous and potentially criminal use of its products, services, etc. Given the ease with which sites may be hacked, I highly doubt that Google, in the event of such an action, would meet the threshold of sufficient negligence for this liability. Normatively, I feel we can all agree this is just and proper – especially in the context of the Net.

Rather, one should ask why these sensitive documents and files are available for public access and/or viewing in the first place. Mdaly constructs an analogy between a personal computer and an unlocked house, and uses this to argue that just as it would not be normatively or positively correct for anyone to intrude into this house and survey its contents – simply because it’s unlocked – that Google has no right to catalog the virtual “contents” of at least some remote networks. Yet, this analogy obscures much more than it informs.

A house has walls which hide its contents from the public. In contrast, a website is by virtue of its purposeful connection to the internet immediately and visibly accessible to the public. In order for mdaly’s analogy to hold in the context of the internet, this house would have to be built with see-through Plexiglas walls, and no curtains or other accouterments which might obscure visibility to the contents of the house. How could the owner of such a building reasonably hold anyone (other than himself or herself) responsible or liable for resultant invasion of privacy, and if the door was left unlocked, a potential theft of valuables?

While this sufficiently dismisses mdaly’s argument, it does not necessarily address the larger issue of whether or not Google’s crawling conforms to normative and positive standards. In addressing mdaly’s first query, I would submit, as we have seen above, that authors who are unaware that their website or web-enabled computer might be accessed remotely present an example of almost cavalier disregard or understanding of reality. Moreover, one would and should ask why those who “probably do not want [their material] displayed” have put it on a website, or have made it somehow accessible to a web-enabled computer? I do not believe it would be economical and/or equitable for search engines to take positive steps to protect those who seem to have little regard for the danger they place themselves in. Clearly, these individuals, and not the search engines, should bear most, if not all, of the burden of ensuring that their sensitive material is safely stored or otherwise protected.

Moreover, as eBay v. BE, CompuServe, Inc. v. Cyber Promotions, Inc., and Thrifty-Tel, Inc. v. Bezenek all make clear “plaintiff’s affirmative efforts” despite “repeated demands to cease and desist” are required for liability under trespass. CompuServe, Inc. v. Cyber Promotions, Inc., at 1. And according to eBay “major Internet search engines, such as Yahoo!, Google, Excite, and AltaVista, respect the Robot Exclusion Standard.” eBay v. BE, at 3. This undeniably cabins their potential liability under trespass.

Confident that we are bound to engage in much debate regarding the more normative topic of “protected speech” tomorrow in class, I bracket this slightly before I begin. I also acknowledge and thank David St. Hubbins for his well-reasoned post entitled the DMCA and Code as Speech. Briefly surmised, he takes issue with the Second Circuit’s problematic “three tier” categorization used in determining protected code speach. While I concur with his analysis, I feel he missed, as did the Second Circuit, central aspects of computer code speech which warrant further attention.

One problematic area of the Second Circuit’s analysis is its parsing computer code into expressive “speech” and functional “nonspeech” elements. Universal City Studios, Inc. v. Corley, at 16. Computer code, as I understand it, is a series of mathematical instructions, formulas, and algorithms given to a computer in coded form, which the simple computational device within a computer takes, computes, and manipulates according to the parameters determined by either the programmer or the user (or often a combination of both). The difference between these formulas and mathematical formulas given in a textbook, for example, is that while the ones contained in a textbook must be computed by hand, individually, the ones within the coded computer language are manipulated as a series (according to parameters found within the code) by the computer’s processor.

Fundamentally, then, they differ only in how much “work” one must perform in order to use them for something. While the textbook formulas, or indeed any “blueprint” for that matter, require substantial work on the part of the user to implement and benefit from the ideas contained in the formulas, as opposed to their creator – who simply describes these formulas, the computer code formulas often require little mathematical “work” on the part of the end user – while requiring even greater work on the part of the creator, the original programmer.

Using then the criteria of who must do what work, and how much of it (See Id., at 12-17), creates problematic distinctions. For while “blueprint[s] or recipe[s], which cannot yield any functional result without human comprehension of its content, human decision-making, and human action” as seen as “pure speech,” a similar (and perhaps even identical) blueprint, computed using the time-efficient computer machine, is seen as “combining nonspeech and speech elements.” Id., at 15-16, 19. This distinction ignores the reality that both “blueprints” can be identical, and yet not equally protected. It obscures (and/or avoids acknowledging) the level of human intent, intervention, and causation required for a program to execute. The ever present “mouse-click” theory obscures more than it informs.

Additionally, this conception relies fundamentally on “human comprehension,” thus contradicting a central position the Court relied upon in terming computer code speech in the first place. Id., at 11 (“Ultimately, however, the ease with which a work is comprehended is irrelevant to the constitutional inquiry.”)

Clearly, then, these positions cannot be all tenably and consistently held. Either computer code is truly scientific speech, or it is not. There is not reasonable means or criteria for parsing between the “functional” and “expressive” content within such speech – it is either all functional, and thereby not speech as protected by the First Amendment, or all expressive, and thereby worthy of “compelling interest” scrutiny. Id., at 15. Logically speaking, I see no alternative for categorizing computer code as scientific speech.

Thus, while I mostly agree with St. Hubbins, I obviously cannot support his assertion the Court’s analysis using the “content-neutral” standard raises no problems. See: The DMCA and Code as Speech, David St. Hubbins (”The finding of content neutral regulation by the DMCA seems well considered.”); Id., at 15-16. For, if all computer code is truly speech, and it is the series of functions, algorithims, etc. which when applied using a computer, within certain parameters and information obtained from the computer’s reading of encrypted data, yield a series of “keys” useful for decrypting said data - if this so offends the DMCA, I see no means that such law can be truly “content neutral.” Indeed, it is the essence of this “content” which the law seeks to enjoin.

Thus, applying its own standard, the Second Circuit erred in its use of the “substantial interest” test (See Id., at 15), thereby stripping computer code of effective free speech protection.

Though it was long, I was, as I hope many of you were, impressed by the clarity, simplicity, and general “reasonable-ness” of the Grokster/Streamcast brief. Having reviewed its central contentions, compared it with petitioners’ claims and arguments, and balanced it against the weight/direction of Sony and subsequent rulings, I predict, unequivocally, that the Court will not side with petitioners.

For, as the respondents so correctly argue, the issue before the Court is not simply whether or not Grokster/Streamcast is liable – for indeed, issues related to “specific acts” of contributory liability were specifically bracketed out of contention by both the District and Appellate Courts – but, simply, whether or not the Court will let Sony stand. In saying this, I implicitly recognize the indisputable strength of respondents’ application of the Sony standard - simply put, petitioners do not have any legitimate grounds to seek relief under Sony - as correctly recognized by both District and Appellate Courts.

And though it is possible that the Court could alter Sony slightly, for several substantial reasons, I doubt they will do so. Obviously, this question centers around the value, weight, and limits of stare decisis. From the start, we observe, as argue the respondents, the practical benefits of deferring to stare decisis. First, the Court would, by doing so, follow its own rationale surrounding myriad decisions relating to vicarious and contributory liability (i.e. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko). By revising its standards here, as petitioners request, the Court would call immediately into question not only such decisions as mentioned above – which directly relate to vicarious and contributory copyright infringement – but also, as respondents recognize, other cases involving the Courts’ deferral to precedent (i.e. Black & Decker Disability Plan v. Nord, Milwaukee v. Illinois, Patterson v. McLean Credit Union, Golden State Transit Corp. v. Los Angeles, etc.). I have no doubt that the Court wishes to avoid such unintended consequences.

Second, as several of the amicus briefs have specified, a judgment in favor of petitioners would, almost invariably impact technologists and other indirectly related industrialists, investors, etc., in a potentially harmful way. In addition to this, such a decision would impact not only the current bevy of products and services available, but also the future development of such products. Indeed, the actual negative “overall effects” of the potentially-offending P2P technology on copyright holders is still indeterminate and at least open to contention. In contrast, the very real and harmful effects the Court would have on various unrelated groups by supporting petitioners’ arguments will likely weigh heavily in its reasoning.

Third, why should the Court become involved when many claim that Congress is not only better-positioned to handle “technology-specific” questions involving competing industries and interests? Not only has Congress undertaken such action before, but the respondents rightly point out that such a targeted and specific approach has at the very least the advantage of “leaving in place” proper protections (from the legislative action) for non-related industries/technologies. Grokster/Streamcast Br. 47, at 20. Such an advantageous result could not occur here, excepting only a most narrowly defined decision. And, as respondents correctly point out, petitioners truly seek nothing short of “change of law to prevail here,” making such a narrow decision impossible. Grokster/Streamcast Br. 13, at 28.

Apart from the practical benefits of rejecting petitioners’ arguments, of which I have only detailed three (avoiding entirely, for example, its impact upon such diverse groups as the government, technology users/consumers, the US economy, “other” media entities, those who would feel the weight of a change of vicarious liability, and so on), the Court has, by its own understanding with Congress surrounding stare decisis, positive and normative obligations to uphold “a fixed target for possible statutory change.” Grokster/Streamcast Br. 40 n. 25. Reading from Neal v. United States, we learn that according the Courts’ own holdings stare decisis should be altered only when:

the intervening development of the law has ‘removed or weakened the conceptual underpinnings from the prior decision, or where the law has rendered the decision irreconcilable with competing legal doctrines or policies.’ Ibid. (Italics added)

Examining both points, namely the conceptual underpinnings of the prior decision and its “irreconcilable” competition with other legal doctrines or policies, we see that the Court is under no obligation to overturn stare decisis here.

Indeed, the conceptual underpinnings of Sony appear to be as robust as ever - namely that “staple articles of commerce” should be free from contributory liability - helping a vast array of products to safely come to market without fear of costly and prohibitive litigation, and making no demonstrably harmful impact on copyright holders. Moreover, a despite some calls for a reevaluation of Sony in light of our new digital age, such an argument is hardly universally held - even among all copyright holders (i.e. those who allow free distribution, the software industry, which simultaneously wants safe harbor from the negative impact of extending secondary liability whilst still protecting its own copyrights).

As for competing legal doctrines, not only has the Court rigorously upheld Sony but it has also extended Sony’s impact specifically back into patent law. Grokster/Streamcast Br. 41, at 25. The only dissonance within legal doctrines and/or policies pertaining to Sony comes not from any irreconcilability, but from competing applications of the standard (9th Circuit, 7th Circuit, and 2nd Circuits all have competing applications). This does not question any of Sony’s “conceptual underpinnings.” In fact, changing Sony could, in fact, create an irreconcilable competition between the Courts’ reformulated decision and any legislative policy Congress should choose to undertake.

Undeniably, the Court is under a great deal of pressure from a vast array of copyright interests to adopt a new standard, and to a certain extent, should feel normatively compelled to do so. Let us not mistake, however, that it is also under intense pressure to do no such thing – not simply through a diverse group of interests (some unlikely bedfellows indeed!), but also through the weight of respondents’ reasoning. For these reasons, and many others, I predict that the Court will, in the very least, not side with petitioners.