Tuesday, February 01, 2005

The coming legal superstorm against bloggers - Exhibit 1

Justin Levine has a continuation piece on the coming legal superstorm against bloggers:

Au contraire Mr. Olson. Mine is not a "pessimistic" view as you put it. Rather, it is a realistic view. ;-)

Exhibit 1 for the coming legal superstorm against bloggers - trademarks & trade secrets. (Look for more exhibits in the future when time allows me to point them out.)

I also must take respectful issue with my good friend the SoCalLawyer who takes a (I'm sorry to say) naively optmistic view of the future.

There will be

some lawyers stepping up to defend a few instances of threatened litigation to be sure (as I stated in my original post, there will be a few "David vs. Goliath" cases that get attention), but there will be no broad systematic defense that will prevent a deep chill over blogging speech.

First off, as some commenters point out, the mere offering of free legal services will not stem all the costs associated with litigation (and it certainly will not stem the stress).

But even more significantly, such lawyers will not offer an across the board defense of blogging as SoCalLawyer seems to imply. They will cherry-pick who they want to defend (or attack) - not based on the outrage of frivolous litigation mind you, but based on their political alliances.

Conservative lawyers might come to the defense of some high profile conservative bloggers. Liberal lawyers might do the same to their blogging counterparts. But there will unlikely be an broad alliance of lawyers willing to tackle the bigger picture - the needed overhaul of the entire intellectual property establishment.

Indeed, many people both within and outside of the blogging world have seen fit to use such litigious weapons against their ideological enemies while ignoring equally frivolous threats against the other side of the political isle.

Liberals like the current intellectual property status quo because it helps them hang on to the last gasps of their monopoly over the means of information production (i.e., motion pictures and mainstream media publications).

Conservatives like the current intellectual property status quo because they (incorrectly) think that "intellectual property" should be equated to "real property" and they have traditionally been defenders of rights relating to real property. Plus, intellectual property also enhances the creation of corporate wealth (which admittedly is not always a bad thing, but conservatives don't consider the other costs involved in this particular instance).

The result will be a piecemeal defense posture at best - wholly inadequate to combat the much broader legal superstorm which will surely chill speech.

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