In Grokster, the Supreme Court ordered the case “reversed and remanded,” stating that Grokster may be liable for contributory infringement, but remanding the case to the lower courts for final decision. What a cop-out. They had an opprtunity to make a clear-cut decision and they passed on it. The only thing the Supreme Court did was apply a slightly different analysis to the case - a so-called “active inducement” test. This active inducement standard requires a plaintiff (read: the RIAA/MPAA) to demonstrate that the defendant encouraged (or failed to effectively deter) acts of infringement in the uses of its products. In other words, that a P2P developer had intended, or at least reason to believe, that his creation could be used as a vehicle for infringement. This will no doubt create a chilling effect on technology developers, who must now be constantly vigilant of possible infringing uses for their products. Technology companies, already fearful of litigation, now have something new to worry about. At best, this decision will add time and cost to product development. At worst, it could deter or even snuff out certain innovations.

I do believe that the ruling leaves the 1984 Betamax decision intact for the most part, and that a defendant still has a reasonably good defense of “substantial non-infringing uses.” The only thing different is that The Entertainment Cartel need only shift its litigation strategy and prove that a P2P developer (or any other similar defendant) has targeted or allowed infringing activities with its product. Only time will tell what the District Court in California will do with Grokster and how it will interpret and apply the Supreme Court’s reasoning.

As to the eminent domain issue (Kelo v. City of New London), the High Court started us down a slippery slope by distorting the 5th Amendment “takings” clause. James Madison must be spinning in his grave right now. Urban planners across the country, who would love to re-gentrify parts of their communities, are thinking of ways to reassign land use to maximize the local tax base. Meanwhile, corporate counsel for big-box stores like Target, Wal-Mart, Best Buy, etc., are likely gearing up for this new means of acquiring land. The Kelo case was not a unique, nor isolated case. Similar cases have been fought in recent years, including one in my state. A couple years ago, Best Buy had the city of Richfield, Minnesota condemn a huge chunk of land along the I-494 corridor, booting a successful auto dealership and numerous residential homes to make way for Best Buy’s shiny new HQ.

Justice Kennedy’s concurring opinion in Kelo, suggesting that some takings might be unconstitutional if premised on “inpermissible favoritism,” offers a tiny bit of hope. But proving such impropriety by a local government would be an uphill battle. The lure of bringing in more tax base to cash-strapped local governments is going to be a powerful force behind this new breed of eminent domain takings.

These are tough times for the American consumer, and the courts are not likely to offer much support to the little guy. Don’t expect much from Congress either - they’re not in the mood for it and the political winds are heavily favoring The Entertainment Cartel. We as consumers need to be more proactive. Stop buying RIAA and MPAA products. This includes video rentals. Support indie films, art and music. If you must buy popular CDs and DVDs, buy them used - the industry makes no money from resales. Try to use more open-source PC applications. Forego the family trip to Disneyland and go explore one of our National Parks instead. Get involved (or be more involved) in local politics and keep a close watch on your local elected officials. Attend local council meetings. Let these officials know in no uncertain terms that you won’t tolerate the kind of property-use bullying recently sanctioned by the Supreme Court.

Sure, in the grand scheme these seem like little things, but if enough people get wise to what is going on, the message becomes more noticeable.