Today's Sunday NY Times Op-Ed page has a piece by Larry Lessig on Viacom's (VIA) $1 billion lawsuit against Google (GOOG) that's interesting on several levels.
Most analysts assume that the suit is a ploy to give Viacom leverage as it negotiates the fees Google will ultimately agree pay to run Jon Stewart clips on YouTube. (See, for example, Joe Nocera here.) I suspect that's probably right, although the suit makes larger claims:
“YouTube,” the complaint alleges, “has harnessed technology to willfully infringe copyrights on a huge scale,” threatening not just Viacom, but “the economic underpinnings of one of the most important sectors of the United States economy.”
The first thing that's interesting about Lessig's take is that he places it in the broader context of the Copyright Act. For most of the Act's history, it was up to Congress to set the rules and courts to enforce them. As Lessig points out, Justice Hugo Black argued long ago that it was not up to the Supreme Court to keep the Constitution “in tune with the times.” That changed 20 months ago, Lessig argues, when ...
... the court expanded the Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright — the wrong of providing technology that induces copyright infringement.
The effect, says Lessig, is that it ...
... has created an incentive for companies like Viacom, no longer satisfied with a statute, to turn to the courts to get the law updated. Congress, of course, is perfectly capable of changing or removing the safe harbor provision to meet Viacom’s liking. But Viacom recognizes there’s no political support for the change it wants. It thus turns to a policy maker that doesn’t need political support — the Supreme Court. (full piece here)
Lessig is clearly on Google's side in this dog fight, which leads to the second thing that's interesting about his piece. Lessig, for whom I have great respect, is a Stanford Law professor and founding director of the Law School's Center for Internet and Society (CIS). But nowhere on the NY Times Op-Ed page, or in fact on the CIS's website, does it mention that Google last summer pledged $2 million to support Lessig's center. (see Stanford Press release here.)
The Fake Steve Jobs, who like Apple (AAPL) knows a thing or two about buying good publicity, rages at length this morning on the hypocrisy of it all.
[NYT ombudsman] Byron Calame, are you reading this? Shouldn't your Op-Ed writers disclose their conflicts of interest? Something like this: "Lawrence Lessig operates a law center that is funded by Google, the defendant in this case."
Here's the thing about the freetards. In their view, since they're on the side of the angels, there's no need to disclose their conflicts of interest. Because how dare you suggest they're motivated by something as unseemly as -- gasp -- money?
Fake Steve then riffs into absurdity, ending with an imitation of Google CEO Eric Schmidt calling Lessig like a dog:
"Lessig! Sit! Gimme a paw! Write me an amicus brief! Good doggie!" Then he cracks himself up again and goes, "Oh, you know, Steve, it's f___ing great to be rich, isn't it?" (link here)
UPDATE: Prof. Lessig, it seems, also reads Fake Steve, who has posted this e-mail exchange:
Professor Lawrence Lessig writes from Berlin to correct my post from earlier today:
"Hey, fake steve, so your post is funny, but really wrong. I have never -- ever -- received a dime from Google. The Center the WSJ wrote about has been around since I came to Stanford (2000). It is funded by Stanford. I get no funding from the Center; my salary doesn't depend at all on what money the Center gets. The Center has been critical of Google (w/ r/t privacy, e.g.) and supportive (w/r/t fair use). The fact that Google gave money to Stanford to support the work of the Stanford matters as much to my work as the fact that (spectrum mogul) Berkman gave money to Harvard to endow the chair I had at Harvard. You may or may not believe that, but the statement, Lessig "is on the payroll of Google" is just flatly false."
Fake Steve regrets the error. We've amended the original item. (link)
Ex ped: FYI, the Center for Internet and Society was founded in 2000, which is when Lessig joined Stanford. Lessig's official biography at Stanford lists him as the "founding director." Lessig is still the director and was so when Google made its $2 million pledge last December. I don't think it's unreasonable to expect that fact to be disclosed in an Op-Ed that relates to a lawsuit in which Google stands to lose $1 billion.
That's one of the questions raised by last week's ruling in a closely-watched California civil suit. 
