Stephen Speicher, writing in his weekly column on Engadget, discusses the significance of the recent Grokster and Brand X rulings. I was actually preparing a similar post but have been too busy to fully digest Brand X and get around to doing so. So in my laziness, I'm deferring partially to Stephen.
As it turns out – Justice Rehnquist and the rest of his Supreme Court posse are also fans of the ancient art of illusion. When the Supreme Court delivered the recent raft of decisions it deftly used the attention-grabbing, yet rather meaningless, Grokster case to grab the attention of the public. Meanwhile, a second, arguably more important, ruling has quietly solidified Comcast et. al.’s legal classification as an “information service” and not as a “telecommunication” service. In doing so, the Supreme Court has set the stage for cable giants such as Comcast to, with impunity, disallow such competitive services as Vonage, Skype, and even perhaps Akimbo, MovieLink, and a host of IPTV services.
So true. The more time I spend with Grokster, the better I feel about the decision. It's not the disaster many of us initially thought. In fact, it's a well-reasoned, fairly balanced and very narrow holding that preserves the heart of Sony while still giving copyright holders an avenue to pursue bad actors. I don't think it dramatically affects the landscape for real innovators. More importantly, it probably means we will avoid broad, over-reaching action by Congress, at least in the short term.
Brand X, on the other hand, concerns me quite a bit. I think the Ninth Circuit had it right in recognizing that cable modem service is part telecommunications service and part information service. The current regulatory framework attempts to categorize services into mutually exclusive buckets while considering both the technical and functional nature of a service. The problem, of course, is that these two factors are discrete axes that should be considered independent of each other. There are certain regulations which should apply to the building blocks; there are others that should apply to, say, voice communication.
Of course, the Brand X ruling has the potential to impact much more than just regulatory issues; classification has implications under CALEA / ECPA, Councilman, and securities regulation.
I need to spend a bit more time with the Brand X ruling, at which point I will update this post accordingly.
