Leashing the dogs of law

Backspin By Mark Gibbs, Network World
August 16, 2004 12:06 AM ET

. What's this?

After last week's BackSpin about lawyers shutting down Napster and 321 Studios there was a surge in feedback. Or rather, a surge in lawyer jokes. There were some very good jokes along with a surprising number that can't be printed in a nice, family oriented journal such as this. My (clean) favorite is:

The devil visited a lawyer's office and made him an offer: "I'll increase your income fivefold, make your partners love you, your clients respect you, ensure you have four months of vacation and let you live to be 100. All I require in return is that your wife's soul, your children's souls and their children's souls rot in hell for eternity." The lawyer thought for a moment and then asked, "What's the catch?"

I also received this one from reader Rich Gierman. Question: How many lawyer jokes are there really? Answer: Only 2, the rest are true stories.

Anyway, before any lawyers start sending letters to me, let me quote reader Steve Goldman: "Blaming the lawyers for this is silly. It is the policies of the corporate entities that employ the lawyers and lobby on behalf of laws like the Digital Millennium Copyright Act that are the issue. What you're doing is akin to blaming your car for running the red light. If their ethics are questionable, what do you say about the ethics of folks who hire them?"

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An excellent point. The lawyers don't unilaterally decide to create an intimidating environment; the corporate executives are the ones who "pull the trigger."

Once the trigger is pulled the lawyers are in the business of gaming the system on behalf of their masters and, as can be seen from cases like 321 Studios and Napster, they show no more compunction than their masters about doing whatever it takes to win.

So in the case of the fall of 321 Studios it was the likes of Jack Valenti, the outgoing president and CEO of the Motion Picture Association of America and the Motion Picture Association and his staff who pulled the trigger.

Taken to its logical conclusion, the problem of responsibility could be considered to lie with the shareholders. They have the power to demand that the executives who hire the lawyers exercise common sense and manage the work of their legal dogs such that they behave in a more public and socially spirited way. But alas, the shareholders don't care.

Ultimately, the problem is cultural. We have few "deep" public business ethics beyond those enshrined in law and those that constitute traditional "values."

In America we prize competition but we have developed a raw and inhumane version of the free-market philosophy. Our version is one that lets the richest players wreak havoc on anyone they please for whatever reason they choose, while we all look the other way and pretend we have a level playing field.

We seem to have lost sight that when it comes to technology there is a real danger that creativity and risk-taking - the behaviors that drive the market - can be completely squashed when those with extreme economic and political power can get their way simply because they can.