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William C. Altreuter
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Thursday, December 02, 2004

Venerable weblogger Jason Kottke has apparently wandered into a buzz saw by posting about the "Jeopardy" guy's winning streak coming to an end. It is very uncool of Sony to be doing this, of course, and all I can see coming of it is bad law. Jason links to a NYTimes op ed by Professor Volokh discussing the idea of a journalist's privilege extending to bloggers-- I don't really buy the necessity of such a privilege, to be honest, and I don't see that it would apply in this circumstance but, as usual, Professor Volokh has interesting things to say, with his characteristic clarity of thought.

It is interesting to think for a moment about what the IP explosion may mean. One of my favorite engineering concepts is the Law of Incompressibility of Troubles-- the idea that if you fix a problem over here, a new problem will pop up over there. Sony is trying to protect its IP rights, and it is doing it, apparently, by means of the time honored method of sending a lawyer's letter. Fair enough, but all resources are finite, and the number of potential IP violations that potentially exist for something like the "Jeopardy" story far exceed the number of lawyers available to write letters-- and the number of dollars anyone has to pay the lawyers. Kottke complains that he does not have the resources to fight Sony, and of course that's true, but Sony is still fighting a losing battle. Much better to pick your fights, I'd say. Enough people read Kottke to make it at least hypothetically possible that he'll be able to mount a legal defense, based on fair use, or something else. I'm half of a mind to volunteer myself. When that fight is over, what will be left will be bad law.

When we started our practice one of our principal accounts was with New York's comp insurer of last resort. They walked a fine line, and were at pains to preserve the independence of counsel, but when it looked like they were wandering into a place where there were two possible answers to a legal question, and one of the answers would make for bad law, they were at pains to avoid that fight. Working for them taught me a valuable lesson-- don't pick fights you can't win, sure; but especially don't pick fights you can't afford to lose.

If Sony shuts Kottke down it'll be a shame, but I don't see Sony winning this argument in the long run.

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