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Tuesday, November 08, 2005


I haven't even tried to stay on top of all the coverage and commentary on the MGM v. Grokster settlement announced yesterday, it would be impossible. From the sampling I have read, the following point does not seem to be getting across.

The defendants won a grand slam home run victory in two federal courts: summary judgment in the district court that was affirmed in full by the Ninth Circuit. The effect of the Supreme Court decision on the litigants (as we've seen, it has had and will continue to have other effects on other parties) is to take away the grand slam and say, "There's a theory on which the plaintiffs can win this case. So, defendants, not so fast. Instead of the early and complete victory you achieved below, there needs to be a trial. A jury needs to weigh the evidence and see what they think about what it means under this inducement theory we've discussed. Get back down there and have a trial."

Back in the trial court, it would be unusual if the parties weren't afforded time at this point to complete discovery and prepare for trial. The evidence the Supreme Court discussed as potentially problematic thus can be put in context, augmented, and explained. (Never underestimate the potential impact of skilled advocacy...) StreamCast appears to have the stomach for this fight, and I expect they will go forward and wage it effectively.

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