1. A particular legal case involving intellectual property is hailed by the Free Culture Commonists as crucial to "preserving freedom" or "protecting innovation."
2. In the case, the right of an owner or creator to control what happens to their property is upheld by a court, because the law and our legal tradition are obviously on their side.
3. The Commonists in the Free Culture movement whine and moan about what an awful ruling it is on their blog and listservs.
4. All their whining and complaining changes nothing.
5. The world goes on without a hitch.
And, occasionally, there is the doubly-amusing
phenomenon of a Commonist flip-flop, where one writes or speaks in opposition
to a particular defense of IP, but then saying that they actually agree
with the final ruling, such as Pamela Samuelson has done on the Grokster
decision. Here
is Samuelson (or her proxies) arguing that the Supreme Court should not
even take the Grokster case,
and here
she is basically agreeing with the Court's ruling.
At the recent PFF Aspen Summit, I was in the room with Prof. Samuelson
when she verbally said that she basically agreed with the Supreme Court's
decision on Grokster.
This is starting to get boring. Or perhaps funny.
First, it was all the whining about how awful the DMCA legislation is,
but the DMCA continues to hold up to challenge after challenge, proving
it is good law.
Then, it was the Eldred case before the Supreme Court.
Then, the Grokster case.
Then, just recently, the KaZaa
case in Australia.
Now it's ACRA
vs. Lexmark, where the courts
have upheld the right of Lexmark to insist that, in exchange for a discounted
price on a toner cartridge, you agree to not refill it.
It's time for the Free Culture Commonists to admit that they are pushing
a novel philosophy, but they have neither the law nor economics nor the
legal traditions of the West on their side. And that's why they keep losing
in the courts.