The Unbearable Pointlessness of the Fight.

Litigation, especially over property to which the litigant has an intellectual connection, tends to be hard fought – but then, the stakes often are so high. The continuation of a business, and the employment of those pursuing that business, hinges upon the litigation outcome. On a coordinate path, with that leading to the litigation outcome, is winning. Plain, and simple, winning; we win; just win baby; I won that case; the other guys lost because… The litigating lawyers pull on the robe of battle, and ‘represent’ all that is at stake in the case, but too, they pursue victory, so that they win. The element of self-aggrandizement is there, and always near the surface. Clients complain that win or lose, the ‘lawyers get paid,’ and to that point, some lawyers can de-personalize their representation and just do the best job. Others need, and seek, to be part of the ‘winning team,’ and to impose defeat on the adversary. Again, it can for self-promotion, or in service of a ’cause,’ such as eliminating a law viewed as unjust or serving a person thought to have been prosecuted unjustly. In my pro bono experience, I’ve freely represented those who had virtually no defense – a seven-time shoplifter, an addict mother about to lose parental rights, a drunk driver who head-on-hit a nice family – but, every time a litigator comes up to the plate, they come to hit at least a single or draw a walk. In IP litigation, there is no laying down the bat, and the IP litigators on both teams play with sharpened cleats.

Some, or none, of those thoughts come up when lookubf over the RIAA v Thomas and Tenenbaum cases, especially the defense. Props to Ben Sheffner’s excellent posts and informed analyses of these matters.

The cases are taking on the big-show-as-down-we-go characteristic. It recalls some of the hype during the Pirate Bay trial, where the prosecutor’s case was ridiculed, but the defense failed. Having represented downloading college-age music lovers, there comes a quick understanding that there’s no much that defense counsel can achieve, and even if you have a good idea, then it’ll cost more than three-grand to play it.

Facing the facts about unpermitted copying of a registered work, gets you closer to perceiving how the case will turn out. The judge is going to apply the law, and eliminate many defenses drawn from fairness, equity and why-me. Even if you bring in inventive, devoted defense counsel, the proofs that establish copyright infringement are hard to overcome. A client once remarked, ‘your work is outstanding and when you said we’d win, we did, but if it’s a case of you against the World, then I’d have to put my money on the World winning.’ So, with a hopeless case, and an unlimited defense effort, the outcome still is fairly predictable.