This fall, as the likely outcome of the 2008 elections became increasingly clear, I was feeling more than usually grateful that debates about intellectual-property rights tend to be largely non-partisan. Granted, these debates are often quite heated, but that heat tends to be generated by constituent interests or strong personal views, not partisan politics.

So I found it funny when a Wired magazine blog tried to put a partisan spin on one of my recent papers. This paper criticized the vacatur of the jury verdict in Capitol Records, Inc. v. Thomas. Wired tried to spin this paper as "Republican think-tank attacks Democratic judge." I can see why this spin might have fooled a harried editor, but it is laughable.

To be clear, PFF itself has no partisan affiliation at all. Nevertheless, I did serve then-Chairman Orrin Hatch (R-Utah) as the Senate Judiciary Committee's Counsel for Intellectual Property and Technology during the 108th Congress, so I can be fairly pegged as a "Republican." Moreover, the Thomas jury verdict was vacated by Judge Davis. Judge Davis was nominated to the bench by President Clinton, so he may be a "Democrat." But past this point, Wired's Red-versus-Blue spin degenerates into absurdity for two reasons.

First, in Thomas, Judge Davis vacated a jury's verdict by holding that an unreasonable federal judge, (Judge Davis), had committed "manifest error" by adopting an unreasonable interpretation of the Copyright Act. My paper argued that Judge Davis was too hard on himself--that his original jury instruction was both reasonable and correct. But since Judge Davis was reversing himself, Wired's account of why I objected to his self-reversal becomes inane. My paper argued that Judge Davis got the law right (on his first try)--and Wired would like to see this a Republican attack on a Democrat. Yet Wired's spin would have been more appropriate had my paper argued that Judge Davis got the law right (on his second try), because then I, like Judge Davis, would have been arguing that a Democrat committed a "manifest" and "unreasonable" error of law.

Second, my paper also rejected Judge Davis' claim that he, like forty years of prior federal officials in all three Branches of the government, had acted unreasonably by holding that the Copyright Act provides a making-available right. In other words, I argued that President William Clinton, who signed the WIPO Treaties Implementation Act of 1998 and nominated Judge Davis to the judiciary, was not as unreasonable as his own nominee claimed.

This is what happens when you try to find partisanship where it does not exist: You end up arguing that a "Republican" attacked a "Democrat" because the "Republican" tried to show that neither a Democratic Judge nor the Democratic President who appointed him were as unreasonable as one of the Judge's recent rulings would suggest. The substantive merits of Wired's attempt put a Red-versus-Blue spin on the making-available-right debate need no further comment.

posted by Thomas Sydnor @ 12:15 PM | Enforcement & Remedies, Free Culture Movement, Internet: P2P, Search Engines..., Media: Video, Music...

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