Quicksilver
During oral argument in the Grokster [pdf] case, one of the three Ninth Circuit judges asked the appellants (paraphrasing):
If you shut down these services, infringement will continue — people will continue to share files with no interruption. Do you agree with that, and if it's true, aren't we chasing the wind here?
The appellants' lawyer responded that, no, that wasn't accurate, that if the services (paraphrasing) ”simply walked away, the system would eventually degrade and disappear, it would close down.” The judge persisted:
But if these are opensource programs, they are very difficult to control even if we do issue an injunction.
The Grokster case raises the same fascinating questions about institutional competence that were dealt with in the Sony Betamax case. Only Congress, the court suggests, can reshape liability theories for copyright infringement. And the panel's questions suggest why this is so: a judge's order is likely to be unenforceable in the quickly-changing world of technology. No judge wants to chase the wind.
In the opinion itself, Judge Thomas uses a lovely word: “quicksilver.” He says:
[W]e live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation.
What does quicksilver mean? It's defined as something that's liable to sudden unpredictable change; “erratic behavior”; “fickle weather”; “mercurial twists of temperament”; “a quicksilver character, cool and willful at one moment, utterly fragile the next.”
In other words, online technological development is yet another example of a complex adaptive system. Small changes made in response to feedback lead over time (in a permeable system through which energy is flowing) in nonlinear ways to unpredictable orderings that are far from equilibrium. The universe is a complex adaptive system; even the laws of physics change over time.
Bravo to the Ninth Circuit for neither trying to catch the wind nor freeze the quicksilver changes in technology. And for using such evocative language.