Common-Sense (Federal) Common Law Adrift in a Statutory Sea, or Why Grokster was a Unanimous Decision
The very day the Supreme Court rendered its decision in Grokster, commentators on the Lehrer News Hour pondered an interesting puzzle: why a unanimous decision? Grokster was one of the very last decisions the Court announced in its 2004-2005 term, and the Court usually decides the hardest cases last. Why, if the case were so simple as to promote unanimity, were there dozens of briefs from a gold-plated list of amici, including several groups of law professors, the State of Utah, two United States Senators, and the Solicitor General? How did one of the most controversial and contentious cases in copyright history produce a unanimous opinion? I'd like to begin by posing a provocative answer to these questions. In my view, the entire Grokster litigation on appeal, with all its Sturm und Drang and many amicus briefs, was based on two mistakes. Once the Supreme Court had recognized those mistakes, it was easy to correct them, and to do so unanimously. Doing what the parties and most amici so desperately wanted the Court to do--revisit its 1984 decision in Sony--was unnecessary and probably unwise.
Jay Dratler, Common-Sense (Federal) Common Law Adrift in a Statutory Sea, or Why Grokster was a Unanimous Decision, 22 Santa Clara Computer and High Technology Law Journal 413 (2006).