The Supreme Court at the Technology Frontier: Brand X and Grokster

Abstract

echnology in the judiciary has a meaning apart from its use as a set of tools for JL handling the business of courts and interacting with the public. Judges and other judicial actors must also contend with the implications of technology for legal ques tions. Late in the 2004-05 term, the Supreme Court announced decisions in two cases that on first glance shared very little in terms of area of law, procedural history, or public salience, but provided opportunities for the Court to address the relation ships between law, technology, and markets. Characteristic of Rehnquist Court jurisprudence, however, both decisions demonstrated a judicial minimalism, or per haps narrowness, depending on your point of view, that reflects either a wise skepti cism about judicial competence or a reluctance to deal with pressing issues. In Metro Goldwyn-Mayer Studios, Inc. et ai. v. Grokster, Ltd., et ai., 125 S.Ct. 2764 (2005), a case concerning peer-to-peer file-sharing-network software, the justices unanimously reversed a Ninth Circuit decision holding that the distributor of a product capable of substantial lawful use cannot be held liable for infringements of copyright committed by third-party users. On the same day, the Court issued a 6-3 decision in National Cable & Telecommunications Association et ai. v. Brand X Internet Services et ai., 125 S.Ct. 2688 (2005), reversing another Ninth Circuit decision, which had rejected a ruling of the Federal Communications Commission (FCC) that broadband-cable modem high-speed Internet service is an "information service" rather than a "telecommunications service."