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June 28, 2005

Grokster and Ten Commandments Case the Same

A lot of great analysis on the Ten Commandments and Grokster cases at Scotus Blog but nobody noted that the legal doctrine in both cases was the same.

Essentially, politicians can promote a religion and Silicon Valley can promote technology that can illegally share copyrighted work AS LONG as they don't SAY that's what they are doing.  Do it quietly, surround the potentially illegal activity with non-religious symbols or non-infringing uses and, voila, you're legally scot-free.

There is an incentive-based logic to that view. Both politicians looking for votes and companies looking for profits are less likely to abuse either the Establishment Clause or copyrighted works if they can't market their efforts to prime customers and take credit for their actions. Sure, nudge, nudge, wink, wink efforts will yield benefits for both groups, but the overall bad effects will be somewhat restrained by cutting back rewards for abuse.

On the other hand, both decisions are a muddle and will encourage endless litigation on a case-by-case basis, rather than laying down clear principles that could allow people to make a decision without expecting to be driven to the courthouse for resolution.

Posted by Nathan at June 28, 2005 08:32 AM