Ten Years of Chilled Innovation

Robert Hof interviews Larry Lessig on the US Supreme Court’s Grokster decision:

Q: What do you think of the decision?
A: This is a pretty significant defeat here. Certainly the result is better than what the MGM companies wanted — because they wanted the Sony case modified — and [Justice David Souter, who wrote the decision, isn’t] modifying Sony. But still, this intent standard…will invite all sorts of strategic behavior that will dramatically increase the cost of innovating around these technologies.

Q: How so?
A: Imagine that you’re a company with a copyright and you see a company coming out with a technology you don’t like because it’s challenging your business model. We’ve seen lots of these — for example, ReplayTV, or the VCR. Obviously, if the technology is illegal, you can just get it stopped.

But a second way to stop the innovation is just to litigate. Look what happened to ReplayTV: It spent years and millions of dollar litigating to defend its right to have the ReplayTV technology as it was. Essentially, it had to fold the company because the legal standard then was so uncertain that you had to get to trial before you could resolve the case.