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...