We continue with more commentary from interested parties regarding the Supreme Court's Monday triple play involving Brand X, Grokster and confidential source shielding. Today: A consortium of local government organizations on Brand X, with IEEE's Andrew Goldberg and Public Knowledge's Gigi Sohn weighing in on Grokster. We're fresh out of shield comments in this final installment of the SCOTUS series.

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Brand X

Alliance of Local Organizations Against Preemption (United States Conference of Mayors, the National League of Cities, the National Association of Counties, The National Association of Telecommunications Officers, and the International Municipal Lawyers Association): The Court's decision to uphold the FCC's view of 'information services' shifts the burden to the nation's local governments to ensure consumers are protected from unscrupulous and unsafe conduct by carriers. We are prepared to use our ownership and management of public rights-of-way, as well as our general police powers to protect our constituents. The Court's decision jeopardizes the nation's public safety as information services are not subject to law enforcement (CALEA) and 911 requirements. The decision also hurts consumers as it denies them the legally protected right to choose unaffiliated Internet service providers (ISP). In making the finding of pure information services, the Court's ruling has the effect of classifying the broadband connection to most residences as an unregulated, closed proprietary network with no obligation to interconnect or to carry unaffiliated VoIP and ISPs. Worse yet, these proprietary networks have no legal obligation to be accessible to the disabled.The classification of this service as an information service will usher in a significant period of market uncertainty. We look forward to meeting quickly with the industry so that at least at the local level, these issues are resolved appropriately, in a way that balances the rights and interests of the operators with that of the local community and constituents.

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On Grokster

Andrew Greenberg, Chair of the IEEE-USA Intellectual Property Committee: "The Supreme Court recognized that a balance must be struck between the interests of artists in their work and the interests of the public to have access to dynamic and innovative technologies for obtaining and enjoying those works. An active inducement test captures the idea that liability for technologists should not be based on the conduct of others, but on what the technologists intentionally did to lead users to use the technology for ill."

Gigi B. Sohn, President of Public Knowledge: "Today's Court decision in the Grokster case underscores a principle Public Knowledge has long promoted - - punish infringers, not technology. The Court has sent the case back to the trial court so that the trial process can determine whether the defendant companies intentionally encouraged infringement. What this means is, to the extent that providers of P2P technology do not intentionally encourage infringement, they are exempt from secondary liability under our copyright law. The Court also acknowledged, importantly, that there are lawful uses for peer-to-peer technology, including distribution of electronic files 'by universities, government agencies, corporations, and libraries, among others.' The Court is clearly aware that any technology-based rule would have chilled technological innovation. That is why their decision today re-emphasized and preserved the core principle of Sony v. Universal City Studios - - that technology alone can't be the basis of copyright liability - - and focused clearly and unambiguously on whether defendants engaged in intentional acts of encouraging infringement. The Court held expressly that liability for providing a technological tool such as the Grokster file-sharing client depends on 'clear expression or other affirmative steps taken to foster infringement.' What this means is, in the absence of such clear expression or other affirmative acts fostering infringement, a company that provides peer-to-peer technology is not going to be secondarily liable under the Copyright Act."