One of the tropes that’s emerging from the blogasm over Grokster, predictably, is that the decision is a bad one because it will “chill innovation.”
Well, of course it will chill innovation. That’s the whole point of intellectual property law, isn’t it? Not to chill all innovation, but to chill this innovation in favor of that innovation. Short-term v. long-term; mainstream v. edgy; firm v. individual; hierarchical v. distributed, etc. — there are a lot of metrics to borrow, all of them interesting, none of them perfect. The history of American intellectual property law — patent law as well as copyright law — is among other things a history of the very slow but seemingly inexorable grind of the law toward models that support “ordinary” or “normal” innovation. The argument today that the Grokster opinion will “chill innovation” is an argument that the new paradigm has arrived. The Supreme Court and Hollywood are playing Ptolemy to the “innovators'” Copernicus.
Continuing with the Kuhnian theme (and ignoring the critiques of his work): How do we know? Are we still in a “normal” period with explainable anomalies? Have the anomalies accumulated to the point of precipitating a revolution? Has the revolution happened, and not everyone has caught on yet? If the Supreme Court had affirmed the Ninth Circuit, there would have been a lot of “chill innovation” rhetoric coming out — from the other side. So the issue isn’t “innovation” vs. “no innovation.” The issue is the kind of innovation that we want and get, and when. Two days after Grokster, all we can do at this point is speculate.