Ernie the Attorney : searching for truth & justice (in an unjust world)


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Judge Richard Posner is a well-respected federal appellate judge in Chicago, and recently gave a talk in Washington D.C. on "The Economic Structure of Intellectual Property Law."  Posner has written extensively on the intersection of law and economics.  Posner was also the judge that was appointed to try to reach a settlement in the federal antitrust case against Microsoft, and he enlisted Larry Lessig to assist him in that endeavor.  Lessig is one of his former clerks and is a well-respected law professor, with a special interest in the law of Cyberspace.  Lessig is a driving force behind the Eldred case that is now pending before the U.S. Supreme court, which challenges the constitutionality of the CTEA (copyright term extension act, or "Bono copyright extension act" as it is popularly known as).

And with that sparse background, here is a chronology of events---

November  19th - Posner talks about intellectual property rights.

November 20th - Declan McCullagh reports in C/Net that, in the speech, Posner decries the expansion of intellectual property rights.  He also writes that "Posner praised Stanford University law professor Larry Lessig for challenging the CTEA and locating a sympathetic plaintiff, Eric Eldred, who was harmed when the law took effect."

November 21st - several people report on the C/Net article.  First at 1:52 pm over at the Delaware Law Office blog it gets reported by Bill Slawski.  Then at 4:05 pm Howard Bashman refers to the article, giving credit to Slawski for bringing it to his attention.  At 4:47, I create a post about the article and give Howard credit.

November 28th - Larry Lessig notes that Declan McCullagh has written a good article, but says there is "zero chance" that Posner praised Lessig for challenging the CTEA. 

Meanwhile, in the comments to my blog post a number of people have left observations that are interesting.   Xavier Sanders, a fellow living in Brussels, leaves a comment and points to a paper that Posner co-wrote with another person in which he argues for infinitely renewable copyrights.  Stan Krute comments and gives a more precise link to the paper that Sanders was referencing.

Sanders says the old Posner paper is at odds with the position that Posner seems to be taking in the McCullagh article.  So what did Posner really say?  How do we know what really happened?  Well, Jon Stanley comes along and leaves a comment on my blog on November 28th with a reference to a transcript of Posner's speech.  Granted the transcript is incomplete and hardly "official" but it does shed a lot of light on what Posner believes and what he said.  Here are some excerpts:

"...beginning in 1976, with the overhaul of the copyright law in that year, there has been an enormous expansion in the scope of intellectual property rights."

"One of the things that convinces me -- I should say persuade -- this is too strong -- that intellectual property law may be somewhat out of control is the extraordinary paper flow over the licensing of essentially worthless material. I get e-mails and letters from these overly scrupulous professors who say could they make ten copies of an article, or something, a paragraph, from classroom use only. Would I please let them do that? And what is my fee? My fee is zero. The academics, or anybody who is not a best selling writer, wants his stuff to be widely disseminated."

And what about his "praise" of Lessig?  Well, he doesn't say anything specific, but I think that the following passage shows that he admires Lessig's handling of the Eldred case, which isn't surprising.  Lessig did an outstanding job and everyone who pays the slightest bit of attention knows it.  And, I'm guessing that Posner is paying more than slight attention to the works of his former clerk.  Anyway, here's the passage.  Judge for yourself.

"And then their [sic] is the Sony Bono Copyright Term Extension Act, one of the, I think absurd statutes in history. Nothing for what it did. It extended already this enormous copyright term of life plus fifty years -- extended to life plus seventy years. And also, added, I think, twenty, maybe twenty five years to the work for hire term, which is also very long."

"And in [the] difficulty that my former law clerk, and the great cyber space guru, Larry Lessig, encountered in finding a plaintiff to challenge the Constitutionality of the Sony Bono Act. If there were a big public domain lobby, public domain coalition, you would think that it would be easy for him to find a plaintiff. But, he looked around. ... he wanted someone who seemed commercially substantial. Someone who had a real interest in maximizing the public domain. I guess, he found Eldred. I do not know much about Eldred. But, he is not -- it is not as if he could find a big company that wanted to knock Mickey Mouse into the public domain."

 Anyway, it is really beside the point whether Posner praises Lessig or not.  The important thing is that Posner seems to accept that expanding intellectual property rights are a threat.  And even more important is the conversation that is taking place amongst lawyers in San Fransicso, Chicago, Maine, New Orleans, Philadelphia and Brussels.  Tim Berners Lee invented the World Wide Web precisely so that such conversations could take place.  And people like Ev Williams and Dave Winer created simple tools to facilitate such conversations.  I don't know about you, but I'm pretty damn impressed.


© Copyright 2003 Ernest Svenson.
Last update: 6/5/2003; 10:08:23 PM.

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