Posted 5:35 PM by Robert

Wizard Of Oz, Jr. Says Something Worth Considering

The Man Without Qualities is not exactly the biggest fan of Professor Lawrence Lessig, as a flip through these web pages will demonstrate. Professor Lessig's whooping and hollering over the Bono Copyright Extension Act, which he tried to overturn on preposterous constitutional grounds that were completely rejected by the Supreme Court in Eldred v. Ashcroft, was one of the most annoying recent distractions in intellectual property law. He actually persuaded a gaggle of economists - some of them Nobel Prize winners - to endorse a silly Amicus brief based on a crude "discounted present value" argument that the Court essentially rejected with the retort: "It is doubtful, however, that those architects of our Nation, in framing the Â?limited TimesÂ? prescription, thought in terms of the calculator rather than the calendar." How Professor Lessig can look any of those economists in the face defies explanation. And Eldred is by no means Professor Lessig's only sin. His friend-of-the-court brief submitted in support of Grokster in its just-argued Supreme Court case against MGM asserts that Grokster should be free of liability even where its users are criminally punished. But the brief is largely anecdotal, and does not even admit that he is in fact challenging long established basics of American copyright law, still less explain why that established approach is wrong. At some point in his life as aging enfant terrible Professor Lessig has got to learn that tabulating what he considers "costs" of a law he does not like is not an effective legal argument, although it may work for media effect. In court, he must show that his version of the costs and benefits balance is the one Congress chose, or indicated the courts should choose (or, in the case of Constitutional challenge like Eldred, that the balance Congress chose is not allowed). He hardly ever does that. He generally seems to be too transfixed by the media effects of his own cute, pseudo-visionary anecdotes. To get this problem under control, he might start by purging from his various biographical sketches all those silly photos of himself staring into space or the luminescence of a flat screen: it is just too hard to tell from those shots whether he was transcendentally inspired or just stoned.

Consider this pearl from the brief:

For anyone offering large files - for example, high quality video - the cost of providing access through the traditional web-hosting model of distribution is prohibitive. The bandwidth costs of distributing a single movie to a single user, for example, can be the equivalent of more than 10,000 people accessing just one webpage. Kevin D. Werbach, The Implications of Video P2P on Network Usage, Video Peer to Peer: Columbia Institute for Tele-Information (2005), at link # 7. Without p2p technologies, the Internet would be an expensive vehicle for distributing such content.

That's all very nice, except that the holders of a film's copyright (and its licensees) are the only ones who should be distributing that film, on the internet or anywhere else - and those copyright holders are mostly on the other side of this case from Grokster. If the economic interests lie where Lessig says they do, why is there no group comparable to the assembled American studios (who support MGM) supporting Grokster? Why does Lessig have to rely on Mr. Rogers and a few rock stars for support? This part of the brief isn't so much legal reasoning, it's more like a confession. It goes without saying that the brief comes not within a parsec of explaining why Congress effected these remarkable changes without ever noting it was doing that. In short, the brief is a typical, complete mess.

Lessig's shallowness infatuation with the "new" is not confined to his area of specialization: he even supported the hollow tort lawyer and pseudo-populist John Edwards (he of the non-existent stump speech warm coat) in the last election cycle as someone who offered something seriously "new."

But now Michael M. Rosen, who practices intellectual property law in San Diego, actually finds a few things Professor Lessig has said that may be worth salvaging. But just a few.

Even better, Mr. Rosen draws attention to some really top drawer material from University of Chicago Law School professor Richard Epstein in the form of a cogent and persuasive response to a typical Lessig screed entitled "The People Own Ideas!" Mr. Rosen correctly notes that Professor Epstein ably disposes of much of Lessig's argument (Lessig offers a rebuttal, too). He certainly does. Not surprisingly, the Epstein article is a superb, polite, broad and near total demolition job. The whole thing is worth reading in detail - especially as a corrective to all the Lessig-influenced palaver one finds on the web and the blogosphere.

The Lessig rebuttal could be skipped, but one should read it just to be able to say one did.