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Hilary Rosen Headshot

The Wisdom of the Court , Part 2

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Wow. We won big. Unanimous. That doesn't happen very often. I was right. Winning is a big psychological lift.

But knowing we were right legally really still isn't the same thing as being right in the real world. We had that euphoria with the first Napster decision. I hope my former colleagues remember that. The result was lots of back and forth and leverage hunting on both sides and continued litigation and then a great service shut down to make room for less great services. And more legal victories didn't bring more more market control no matter how many times it was hoped it would.

The euphoria of this decision does not and should not change the need for the entertainment industry to push foward and embrace these new distribution systems. Does the court win help? Maybe, but only if this victory is seen as gaining leverage in business negotiations rather than an invitiation to only pursue more litigation and enforcement. Certainly there will be some P2P services who will be in a better position to play here than others.

The mainstream technology industry should also be pleased with this decision. I dont' think they are going to be victims of a rash of lawsuits against the iPod and other products a was claimed multiple times. This decision should be seen as permission to distinguish in the industry between those with good intentions versus those with nefarious interests.

I will never forget Larry Lessig yelling at me (well, Larry doesn't really yell - I do) when I "accused" him of defending Kazaa. "I don't defend their stealing", he said "their practices are not what we are interested in for the future." We subsequently found we had so much common ground on issues and both were simply looking not just for technological innovation but true change in the hearts and minds of those working in the respective industries.

For sure, this court ruling sets up new stages - congressional fights, enforement actions, business negotiations, etc. which I will comment on in future posts.

For today, I hope all sides will take a deep breath and realize that this Supreme Court decision doesn't change one bit their responsibility to move forward together on behalf of their consumer.