While I was napping, lots of others have been doing a great job reporting on the arguments. I'll have more of a recap later, but with the caution never to read too much into an oral argument, I was encouraged. The Justices seemed to be asking the right questions -- wondering how they'd impact innovation if they changed the Sony rule. Scalia, for example: "How much time do I get to bring lawful use to outweigh unlawful use [in a proportionality test]? I'm going to get sued right away." or Souter: "Why isn't it a forseeable conclusion that the iPod developer loses his shirt?"

Justices also seemed puzzled by what alternative test the entertainment companies were proposing to substitute, clearly disturbed by the consequences of a proportionality or "commercially significant" rule. It's not clear they responded to Don Verrilli's (petitioners') argument, joined by the Acting Solicitor General, that these were "business models built on infringement." They had probing questions for Richard Taranto (Morpheus and Streamcast) too, particularly on alleged willful blindness and on how the court should distinguish what "current" conduct was before it from the past conduct that hadn't yet been subject of summary judgment rulings below.

With bated breath...

I can't compare with Nick, Beatrice, and Kragen, who arrived around 2:30 p.m. yesterday to capture the first seats in the public line for entry to the Supreme Court, but I joined them around 11 p.m., and helped kick off the bar entrance line around 3 a.m. with the EFF gang of Kurt, Matt, Gwen, and Shari. After a DMZ, most of the line behind us was RIAA and MPAA lawyers.

Though they're vigorous opponents in court, the entertainment company lawyers were friendly line-sharers, helping us to save our places in line, and even fortifying us with Krispy Kreme. It's a good thing we were there early, because the line later swelled to more than 150, of whom fewer than 50 bar members got into the courthouse itself.

Signal/Noise 2k5 Next Friday, I'll be talking about music and the law from a different angle at Harvard's Berkman Center's second Signal or Noise? conference. The first helped kick off the study of music and the law five years ago. Join us to see what we've learned (and not yet learned) since.

Thanks to Southwest Airlines for excellent service. Even when misinformation from their codeshare partners threatened my plans, Southwest made sure I got to DC on time.