It is the middle of the night. Sleep is awol, scared off by this question that won’t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle?
[good stuff deleted. Go read it ]
One friend offered a reason in an email of condolence. Those 5 (judges), he said, save their activism for issues they think important. They apply their principle to causes they think important. Protecting states is a cause they think important. Protecting the public domain is not.
By what right? By what g.d. right? These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?
This sounds so amazingly naive, I know. But I have spent my career staring down the charge of naive, insisting on something more. Think the poster on the X-Files — “I want to believe” — but with the Supreme Court, not UFOs, in the background. Yet here I am, more than a decade into my job, just where most of my professors insisted I should have been more than a decade ago.
Harvard Professor Roberto Unger ends one of his first books by describing us, the professors, as “priests who have lost their faith but kept their jobs.” I remember loathing those “priests” as a student. They have the right to lose their faith, I thought; they have no right to keep their job.
Next week, Tuesday, I am to teach the first class of the semester in constitutional law. Who as I am not yet sure.
The precise problem with that attitude on the part of the judges (which I agree is likely what happened) is that they are not always right as to what is important, and the relative importance of things change over time. This is the entire reason why we have this mess in the first place: for 200 years people have said "this is not important" and have let one industry write its own laws, and when technology changes things so that copyright law is more important, then we have 200 years of bad law that nobody has questioned to overcome, and ingrained attitudes in government, business and the law that are based on that legacy.
Of course, as intellectual property law becomes relevant to more and more things, there will eventually become a time when the supreme court judges will consider it "important". (I honestly thought that the act that they took the case in the first place was an indication that this had happened). Of course, a lot more damage can be done in the mean time. However, I honestly believe that in the long run the tide will turn. In terms of awareness of the problem, the distance we have come in the last 10 years is really remarkable.
You have to keep fighting. Without idealists who fight, the bad guys win without a fight, and that is far worse.
Update: Dave Winer has some thoughts on this, too. Like Dave, I am just delighted we have someone of Lessig's calibre on our side.