David Post offers his prediction about the outcome and the reasoning of MGM v. Grokster in the Supreme Court. His thinking: MGM wins on the ground that summary judgment for Grokster was inappropriate. The Sony rule lives but is supplemented by new emphasis on intentional inducement of copyright infringement, and the case gets kicked all the way down to the trial court for more fact finding. David writes: “The Court has an easy ‘out’ here, and my experience has been that when they’re presented with an easy out they usually grab it.”
Fair enough. David clerked on the Court. The reasoning certainly sounds plausible. What puzzles me is why the Court would take this case in the first place if it were going to take this route. Assume that the Court wants an easy out. Is this in fact its easiest choice? “Summary judgment was inappropriate” is a conclusion that sits well (and easily) with trial lawyers, but to litigators (who crave motion practice and hide from juries) and corporate officers (for whom predictability is everything), it’s like fingernails on a chalkboard. How about this: The Court could change its mind and refuse to decide the case at all, writ of certiorari dismissed as improvidently granted. Pretty easy. Or this: The Court takes this opportunity to re-affirm the rule of its opinion in the Betamax case, as elegantly recapitulated and applied by the Ninth Circuit in this case. Damned easy. I don’t have a strong sense of what the Court will actually do, but I’m skeptical that one route is any easier than any other.