Well, before I rant breathlessly about the Grokster decision, I have to say I haven't actually read the decision yet. I am somewhat disappointed in how it all fell out, and based on the actual argument transcripts (which I have read, because they're easier to read than the actual decisions most of the time) I had expected Grokster to win. Shows me. I've been told that the decision itself is in fact very narrow. I know that Justice Souter's opinion specifically says that P2P applications in general are a neutral entity; Grokster lost the case because the company--at least according to MGM--specifically encouraged its users to share copyrighted material. Per the decision, product designs that allow for illegal uses are not litigable absent specific evidence that the illegal use was encouraged by the producer.
I was rooting for Grokster, primarily because MGM and every company associated with the RIAA and MPAA are inherently, violently, and unredeemably evil, and every decision against is thus by definition a decision for goodness and virtue. Therefore I am disappointed in the decision. But if it's as narrow as it seems to be, then all is not lost. Yet.
The Kelo decision of last week is another decision like Grokster. It seems to have gone badly for property rights advocates, but at the same time Justice Kennedy's concurrence narrowed things down somewhat. Since his was the 5th vote in the majority, his requirement for extra diligence in eminent domain matters more than the actual opinion of the court. I suspect some city somewhere is going to condemn some property to give to a good ol' boy developer, and this whole thing will end up right back in front of the Court and will be overturned or, at any rate, narrowed slightly. So this may not be all that bad either.
The decision that bothers me the most from the Court is the decision not to review a case brought by two reporters in the Valerie Plame case. You'll recall this as the case where Bob Novak outed Ms. Plame as a spy in a column... well, look it up if you need more. In the ensuing journalistic investigation of the affair several reporters made use of "secret" sources, folks who spoke only on the condition of anonymity. Folks like Mark Felt (aka Deep Throat).
The two reporters in question refused, during grand jury hearings on the incident, to reveal the names of their sources. They were held in contempt of court and are both in prison at present as far as I know. They brought suit because they hoped the Court would agree that journalists have the same right to maintain their sources' anonymity as lawyers and doctors do to protect their clients. The Court, clearly, doesn't agree.
By a wide margin, this is the most problematic decision to come out of the Supreme Court this year. On this basis, knowing that a reporter could go to jail for not revealing your name as his source, how inclined are you going to be to tell that reporter anything? If you were Mark Felt and you knew Bob Woodward and Carl Bernstein were going to have to choose between getting cornholed in the clink or revealing your name to Congressional investigators, would you tell them anything at all? Would you even consider it? Let's hope I'm only being melodramatic.
2 comments:
Thanks for your comments about the two reporters. As someone interested in working for the publishing industry, it really makes you question the "powers that be." This case already seems so shady with Novak's involvement, and lack of involvement in the lawsuit.
I've since learned the reporters are facing 18 months in prison; they've been free awaiting an outcome in this case, and it looks now like they'll head up the river shortly.
I assume Novak sung like a canary at the grand jury investigation, both because he's a coward and because he doesn't care about protecting his sources.
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