Don't Mess With Lessig

Lawrence Lessig is not the kind of guy you want to piss off.  Lessig, a Harvard law professor, is one of the world's leading experts in copyright law; more to the point he is one of the pre‑eminent thinkers in the ever-expanding area of fair use and intellectual freedom. 

Lessig recently gave an online lecture and used part of the song "Liztomania" by the band Phoenix to illustrate a point about dance music and global Internet phenomenons. The lecture was posted on You Tube.  Liberation Music, an Australian company sent Lessig a letter claiming copyright infringement and threatening to sue for violating its exclusive rights. They apparently also sent a takedown notice to You Tube, under the DMCA provisions.  Lessig neither ignored the letter nor did he bother to send a reasoned response outlining his position.  He instead filed suit asking for a declaratory judgment that his use was a protected fair use.  He is asking for damages and legal fees

Lessig's suit is one of what appears to be a growing number of copyright cases using the concept of "copyright abuse" to challenge what might be accepted norms in copyright law.  To be sure, few would disagree that Lessig's use of the song in an academic lecture is almost certainly fair use; it's right there in the statue.  What is more interesting is that Lessig is using the courts and assuming the role of plaintiff to prove his point.  Robin Thicke has done the same thing with his lawsuit against Bridgeport Music and the Estate of Marvin Gaye, filed in response to their claims of copyright infringement with his song “Blurred Lines”. The Lessig case, if it goes to trial, may help academics gain a better understanding of what is permissible in the area of fair use and scholarship.  It might also give copyright owners pause before sending cease and desist letters and sending take down notices to YouTube and other outlets. 

The Lawyer/Business Person Dichotomy

             "You are not a businessman."

            " And you  are not a lawyer."

            This was the substance of a spirited "discussion" I had with a client a couple of weeks ago.  The exchange  has stayed with me because I think it illustrates an important and often-overlooked distinction.

            I wish I was more of a businessman.  I think all solo lawyers are by definition entrepreneurial but after three decades of doing this, I know that I lack a number of the fundamentals of business acumen.  However, I am confident that I make up for that deficit by being analytical, by being able to evaluate risk and most of all by being aware of what needs to be done to protect the client.

            There is the rub.  Not all clients want to be protected.  A lawyer (at least the ones who do their job) often gets caught between trying to advise the client to do the prudent thing and the client's other strategic goals.  If you read enough advertising and marketing materials, you will see those ads by lawyers who boast that they excel at "bet‑the-company" litigation.  This always strikes me as foolish.  Only in the most dire of circumstances would a businessperson ever decide that it is worth it to "bet the company".  I have tried to make one of my mission statements :(there, that's a business term isn't it?) that I "help people find solutions to complex problems".  That really is the challenge where law and business intersect. In other words, a lawyer should help to advance a client’s goals while at the same time protecting the client’s interests. Sometimes that means trying to protect the client against themselves.

            This can play out in many ways.  In transactional work, it could mean knowing approximately how much you can ask for without blowing a deal.  In litigation it is much more complex.  Any lawyer will tell you that settlement is always preferable to risking a trial; there are too many variables.  Sometimes there's a lot of posturing, like an expensive game of chicken.  We like to think that the world is a rational place.  The older I get,  the more I realize that this is a fallacy.  In the end, there's going to be a constant struggle between the particular kind of mindset it takes to succeed in business and analytical lawyerly risk evaluation.  This is not a bad dichotomy, it keeps us all employed.  Sometimes though,  it is startling to realize that it is in fact a very real dichotomy and one that can often cause tension in lawyer-client relationships.