What Larry Did Get (just this once, mind you...)

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Declan McCullagh <declan () well com>
Reply-To: declan () well com
Date: Thu, 16 Jan 2003 01:16:50 -0500
To: politech () politechbot com
Subject: FC: What Larry Did Get (just this once, mind you...)

I've tangled with Larry Lessig over politics for many years -- longtime
Politech readers will remember Larry registering what-declan-doesnt-get.com
and his related book chapter. (http://www.politechbot.com/p-00712.html)
Because Larry can be very wrong at times, we will frequently continue to
disagree. :)

But Larry's work against the Copyright Term Extension Act has been
diligent, thorough, and praiseworthy. It's true that I think he's right
(http://news.com.com/2010-1071-960918.html) about the desired outcome here,
but I believe I'd be writing the same thing if I didn't.

It's also true that, as Eben Moglen suggests
(http://news.com.com/2100-1023-980792.html), there might have been a
different outcome if Larry and his colleagues had waited a decade to
challenge the law. Courts, even the Supreme Court, can be influenced by
public outcry over too-restrictive technologies. Even justices listen to
grandchildren. But this is hindsight, and now we know where the court
stands.

The tussle leading up to the Supreme Court case has done two interesting
things. First, it has highlighted some of the recent expansions of
copyright law -- I think of the DMCA, NET Act, and CTEA as the troika of
the late 1990s -- and their problems. Second, it's catalyzed a movement
that will last beyond today. The second outcome would not have happened
without Larry championing this case.

The 1973 Roe v. Wade decision was also 7-2. It galvanized conservative
activists in much the same way today's decision outrages members of this
ragtag movement of geeks, librarians, and Internet publishers. Whatever
your views on abortion, recognize that from the perspective of the
activists of the 1970s, Roe violated their values and had government
crossing a line that it ought not to have crossed. The aftershocks continue
today, with President Bush's faith-based initiative plans as the latest.

But today's movement can't wait decades to seek more clueful justices --
not that this tactic would work anyway -- and Congress seems studiously
uninterested (http://www.politechbot.com/p-04318.html) in mending its
errant ways.

Still, Larry's blog entry today is more dispirited than it should be:
> So I've got to go get onto a plane to go to my least favorite city (DC).
> My inbox is filling with kind emails from friends. Also with a few of a
> different flavor. It's my nature to identify most closely with those of
> the different flavor. David Gossett at the law firm of Mayer Brown wrote
> Declan, "Larry lost Eldred, 7-2." Yes, no matter what is said, that is how
> I will always view this case. The constitutional question is not even
> close. To have failed to get the Court to see it is my failing.
> (http://cyberlaw.stanford.edu/lessig/blog/)

Yes, Larry lost the case. Or, more precisely, the justices veered in the
opposite direction. But Larry did the best job possible with the facts at
his disposal and the precedents in place at the time. The very fact that
(as we've heard so much) Congress has extended copyrights something like 11
times so far must have made the majority reluctant to go along. And the
decisions from the district court and the appeals court and the pointed
questioning during oral arguments should have presaged today's news.
(http://news.com.com/2100-1023-961467.html)

The problem now is what to do with this movement's angry fire. To his
credit, Larry will be one of the most prominent torchbearers. I made my
suggestions in August (http://news.com.com/2010-1071-949275.html), and I
suspect Larry will post his on his site. If Politechnicals would like to
send along their own, I'll dutifully compile and forward.

-Declan

PS: Here's the best roundup of info on the decision I've seen so far,
compiled by Donna Wentworth:
http://www.corante.com/copyfight/20030101.shtml#18051




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