Just before last Christmas, the D.C. Circuit left a lump of coal in the stocking of the content industries when it decided, in RIAA v. Verizon, that copyright holders cannot get the identities of P2P file-sharers from ISPs that are engaged solely in transmitting information rather than storing it. A complaint must first be filed against "John Doe."

The decision was a surprise to most observers, including, it now turns out, the U.S. Department of Justice. In a brief filed in RIAA v. Charter Communications, pending in the 8th Circuit, DOJ characterizes the D.C. Circuit decision as "inconsistent with the text of [the relevant law] and the legislative policies that underlie it," and as one that "directly frustrates Congress's intent."

The odds that there will be a conflict in the circuits, the summum bonum for every lawyer desirous of Supreme Court review, just took a bounce up.