Lessig on Grokster: Ten Years of Chilled Innovation

29 Jun ’05

Professor Larry Lessig has been interviewed by Business Week on the U.S. Supreme Court’s Grokster decision. His overarching concern is an unclear inducement test that will have to be developed by the lower courts over time, leading to, as he put it, “ten years of chilled innovation”. Interesting quotes:

Q: So the problem with the decision is just that the Supreme Court rendered an opinion at all, rather than letting legislators decide?
A: Right. By making it a process that goes through the courts, you’ve just increased the legal uncertainty around innovation substantially and created great opportunities to defeat legitimate competition. You’ve shifted an enormous amount of power to those who oppose new types of competitive technologies. Even if in the end, you as the innovator are right, you still spent your money on lawyers instead of on marketing or a new technology.

In Congress, we might have a lot of argument about what the statute should look like. But that would be a process that would resolve this intensely political issue politically. Instead, Justice Souter engages in common-law lawmaking, which is basically judges making up the law they want to apply to this particular case. And not just Supreme Court judges — what they’ve done is invite a wide range of common-law lawmaking by judges around the country trying to work out the details of what this intent standard really is.

Q: Do you think in fact we’ll see a dampening of innovation?
A: Yes. Now, I don’t think we’re going to see tons of litigation. What you’re going to see is innovation that’s channeled in ways the copyright owners can agree to, or channeled in ways that avoids any kind of possibility of this kind of litigation.

That has already had its effect in the Valley, and already money has shifted into places which will avoid any conflict with the copyright holders. Why buy a lawsuit when you can buy a new innovation that doesn’t get you a lawsuit? And you don’t even see it — you don’t even know what you don’t get because people are afraid.

He’s right, of course, and the innovation chill concern was probably topic #1 in the Grokster discussions in the blogosphere yesterday. Two good examples are Robert Scoble’s comments shortly after the decision was released – the comments are here, and Mark Schulz’s posts on Eric Goldman’s Blog about the expected impact of Grokster on BitTorrent – the posts are here and here.

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