An argument made repeatedly in the briefs in Grokster is that technological innovators will be hobbled if they are forced to consult lawyers about possible copyright infringement issues, especially if the issues are not subject to crystal clear tests.

The problem is indeed worthy of concern, but I am increasingly inclined to think it deserves less weight than it is now receiving.

The reason: PFF has become more involved in patent issues lately, and it is clear that technological innovators are already up to their necks in lawyers, that they are making decisions about zillion dollar investments on the basis of patent issues and doctrines of stupefying opacity.

This is not an argument for making things more opaque or convoluted, of course. But we are not in danger of introducing the serpent of law into a pristine Eden. We are talking about incremental adjustments.

Naturally, both patent and copyright should be rationalized and made as predictable as possible. Lowering the transaction costs of innovation is indeed desirable. But, as Justice Kennedy noted during the Grokster oral argument, this should not be interpreted as giving innovators carte blanche to build business plans based on the capital value of expropriated property.