You meant "It's not quite (no 's') as bad as (not and) your pedantic rant makes it out to be."
How's that for pedantry?
Just kidding before you get all red-misty. The point about making law matters because in fact the legislative *has* directly legislated in respect of file sharing and that's where this particular gun should be pointed not at the judiciary. The idea that the Supreme Court makes law is the sort of thing that gets set to high school students but has a clear answer (it doesn't) even if its precedents can, of course, have huge effect. It's a pundit type statement and it's plain wrong. The article suggests the courts made a "mistake" in the way they ruled if their intention was to block file sharing and that the litigation approach led to increases. Neither are made out and the basis of the suggestion that they'd even be in the business of doing that is simply wrong as explained. I qualified in 1996 as it happens.
The article reads like an undergraduate who wants to write a shit-kicking thesis and is really oooh excited about things but has entirely failed to do anything more than throw a few disjointed ideas in a bucket. It is peppered with lines that sound good but don't stand up to a couple of seconds examination: " So once the Napster litigation made P2P programmers aware of the rules about knowledge and control, they simply coded Napster's successors to eliminate them." I mean WHAT? Programmers coded out rules of "knowledge and control"???? No, the rules of law on knowledge and control exist independently in jurisprudence. How do you "code out" something that's entirely outwith software? Nonsense.
The author states "I would argue pre-P2P era law was based on a number of "physical world" assumptions." She goes to state that that makes sense because, well, it was pre-P2P. When you start any sentence with "I would argue that" (which is bad enough as it goes) and then point out in the next sentence that it's bleeding obvious, then it rather tends to underline you haven't made a point at all. Which is more than a small problem when you then go to make four non-points on the back of that about "the physical world" where, again, one sees no connection to the principal "argument" that litigation apparently "spurred on" file sharing. Ideas in a bucket.
And at the heart of it, the article offers no causative argument that litigation spurred on file sharing. At best it observes that file sharing increased in the era after litigation but it falls down entirely in showing any causation rather than correlation. There are other daft arguments about the Supreme Court making laws: it doesn't, de Tocqueville et al were rather insistent it couldn't; rather its interpretation of law clarifies the law already in place, which show the author is floundering on the subject matter.
So a number of ideas that sound like they were excitedly discussed in an undergraduate bar (and not at a terribly good college) and aren't worked through or even put into a single coherent narrative and which argues causation but offers no evidence of it.
A verbal contract isn't worth the paper it's written on. -- Samuel Goldwyn