One of the many Canadian and foreign copyright experts who has completely ignored a direct personal request to endorse The Cranky Copyright Book, Howard Knopf, takes Charles Nesson to task for losing a not-very-major copyright case. (It’s not very major because it isn’t precedent-setting and did not take place in a high court. That doesn’t mean the case isn’t newsworthy.)
Knopf makes a resounding case for Nesson’s arrogance and incompetence. But, just as the American recording industry picks on small-time offenders, Knopf derides a law professor who lost a minor case while giving a pass to another professor who lost a major one.
I refer of course to Lawrence Lessig, who completely borked an appearance before the U.S. Supreme Court. This hero of the copyleft movement lost at the Supreme Court, a fact nobody wants to talk about, yet he is somehow viewed as an éminence grise in copyright-reform circles. If you’re an attorney in the U.S., there are many ways to lose, but there is no bigger way to lose than before the Supreme Court. Lessig managed it handily. Short of disbarment, there is nothing worse that can happen to the career of an American lawyer.
The fact that Lessig has ostensibly left the field of copyright reform behind him is another detail his supporters seem to have overlooked. (Why wouldn’t he change focus? He lost.)
Knopf berates Nesson, whom he essentially characterizes as an eccentric if not a kook, for mistaking the courtroom for a classroom. But this is exactly what Larry Lessig, held in wide esteem, admitted having done (emphasis added):
As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike down this law of Congress if they wanted to.
There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere….
A better lawyer would have made them see differently.
Metaphorically speaking, Knopf should spend his time harpooning whales, not jigging blowfish.