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

[Declan McCullagh <declan@well.com>]

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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