First, I like Lawrence Lessig. He is interesting, I agree with a lot of his opinions on Copyright, and even applied to intern at the center he started at Stanford. But I really disagree with his latest string of cases, pushing on various points of Copyright law. Summary here: http://bit.ly/hSFaCh.
My summary: Lessig thinks that copyright is too extensive (which he may be right about), so he’s been choosing silly test cases to try and get the Supreme Court to narrow the Copyright Act. The most recent centers around the idea that when a few foreign books that had been in the public domain were swept back under copyright, it was a violation of the First Amendment. Some facts: Nobody was harmed in the making of these copyrights, nobody particularly cares about the books, and I can’t see how it impacts the First Amendment in anything but a theoretical way (yes, that’s a fact).
The Supreme Court just took his most recent case because the lower court accidentally went with Lessig’s story (Copyright should be “limited”, as written in the statue) as opposed to the Supreme Court’s prior message on the topic (Congress can do whatever it wants with Copyright, even if the outcomes are absurd). I’m sure Fantasy SCOTUS would tell the SCOTUS bookies to have Lessig as a big dog, with a push for an outcome where the books are simply placed back in the public domain (the judicial equivalent of giving Lessig the middle finger).
The idea of test cases is pretty well-utilized in the public interest arena, and I’m fine with that because civil rights are more important than copyright, and the issues those cases challenge are usually extremely relevant to at least a minority of people (issues of forgetting the plaintiff aside). But the sort of litigation Lessig pushes (he’s obviously not alone, not by a long shot) wastes resources and is almost more self-promotion than anything else. Hundreds of hours of our judiciary’s time is going to be wasted for the Supreme Court to just say “go away” to Lessig, and the ‘best case’ scenario is that Lessig wins a nuanced point of Copyright law regarding Congress’s ability to take things out of the public domain, something that rarely happens anyway. The rights implicated are completely theoretical. There should either be another court system for test cases, or we should send a bill to Lessig at the conclusion of the proceedings. Just because I like Lessig generally doesn’t mean I support wasting resources on this sort of litigation.
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