How do you sleep at night?

Lester Lawrence Lessig III suggests in a recent blog that his remarks at the CISAC conference last week were misquoted by Andrew Orlowski in his editorial about Lessig’s performance in the Register. “Trip” Lessig offers up an International Herald Tribune piece as offering a more accurate statement of his views.

Unfortunately, the key theme that Orlowski was making–as has become a topic of cocktail party chuckles in and outside the Beltway–was that Trip Lessig is in Google’s pocket and is working for The Man. I don’t know exactly what Andy O was thinking, but I gathered from his piece that he was drawing on the substantial contributions (millions) made by Google to Trip Lessig’s various centers for the study of screwing poor creators, Lessig’s public defense of Google in the New York Times and elsewhere, and the fact that Lessig defends The Man at every turn. (“‘This is an ideal partnership,” said Larry Kramer, Richard E. Lang Professor of Law and Dean [of the Stanford Law School].’” Oh, you bet your little beanie it is.)

Trip Lessig made a rather indignant repost on his blog over the weekend in which he railed against the Orlowski piece, and made a big deal out of stating that he doesn’t represent Google (which I guess could mean he could represent YouTube? Not clear.) This is really just a grift to focus attention away from the fact that there is an apparent quid pro quo: Google gives money to Lessig’s activities, and Lessig supports Google (which includes the Fair Use Project, part of the business unit at Standford funded by Google, that brought lawsuits against Viacom in connection with DMCA notices served by Viacom against Google in the YouTube litigation. One must ask oneself why it is that the Fair Use Project filed this particular lawsuit out of the hundreds of thousands, if not millions, of DMCA notices sent to Google and YouTube. Why file a lawsuit? Why not just send a counternotice? What about this particular case is unlike the all the others?)

Unfortunately for the Tripster, the International Herald Tribune piece also tied Lessig’s interests to Google’s interests, it just did it a little more politely for wee Larry’s thin skin. So even though he thought to deflect attention away from the criticism of hand in glove and brass in pocket, it really didn’t do that at all.

Professor Lessig engages in another excellent attempt at slight of hand in his quotation by the International Herald Tribune (extending the theme of Lessig in Google’s pocket):

“‘There are an extraordinary number of people who are creating on their own and doing so for a different reason than money,” Lessig, a lawyer who allies himself with Google in copyright positions, said during an interview. ‘Somehow we’ve got to find a system that ratifies both kinds of creativity and doesn’t try to destroy one in order to preserve the other.'”

Here’s the grift: Professor Lessig focuses on the users who don’t get paid to post content on, say, You Tube. People post on You Tube for “a different reason than money”.

Fair enough. What does that assertion prove? The Two Kings SOLD You Tube for one reason and one reason only–money. And Google bought YouTube for one reason and one reason only–money. Based on a wink, wink (or “nod, nod, bling, bling“) approach to the DMCA that appears to have sprung largely from the Tripster’s intellectual loins. So gobs of user generated content stealing other people’s property without a license produces CASH for The Man. The fact that users post for reasons that have nothing to do with money misses the point that the people who encourage them to post, and who know that the users are posting massive amounts of illegal content, are only doing it for money. Particularly since they’ve never made a record or shot a movie in their scalable lives.

But Lester Lawrence Lessig III’s grift is to get you to focus on these poor benighted souls who are motivated to do the work his benefactors profit from, and then try to make himself sound reasonable for advocating the ratification of a new form of “creativity”–aka mob rule that will benefit his benefactor. Kind of like let them eat ringdings.

It’s even better that the users don’t do it for money so there’s more money for King Chad. Not only does he not have to share much of the bling with the people he’s stealing from, he doesn’t even have to share it with the users.

You have to admit that Lessig defends one of the more brilliant scams to get foisted on the creative community and we’ve had more than our share. This scam is actually better than the Grokster scam that the EFFluviati loved so much–this one brings untold riches to the mall. It’s so sleezy it makes me want to take a shower, but it’s brilliant in a sordid kind of way, particularly if you admire pirates and other folk who can’t make an honest buck.

As Professor Doug Lichtman of the University of Chicago Law School writes:

“[B]ad intent on the part of providers must be mercilessly punished. By necessity, copyright rules in new-technology settings are flexible and imprecise. They allow creators of new technologies to experiment with design and implementation. They excuse small, innocent mistakes. But that flexibility cannot be entrusted to people or companies that knowingly exploit loopholes. This is why the last big copyright fight — the music industry’s case against Grokster — proved so simple. The question of exactly which precautions the law should demand of Grokster and related services was a difficult one. The question of whether Grokster’s ill-motivated founders should be allowed to play any role in establishing those rules, by contrast, turned out to be embarrassingly straightforward.”

What appears to be lost on Google is that Lessig and his fellow travelers did a brilliant job of articulating the losing argument in Grokster and did so–I would argue–because they skipped over the funamental step that the defendants were outside the norms of society. (Although apparently not outside the norms of the EFFluviati.) They’re about to do the same thing again in YouTube if you ask a lot of people. The difference–and it’s an important one–is that you don’t have judgement proof defendants in the YouTube case.

Imagine if I’m right and Viacom prevails. Imagine the quote from Professor Lichtman rewritten in a couple years to read: “[B]ad intent on the part of providers must be mercilessly punished. By necessity, copyright rules in new-technology settings are flexible and imprecise….But that flexibility cannot be entrusted to people or companies that knowingly exploit loopholes. This is why Viacom’s case against Google proved so simple. The question of exactly which precautions the law should demand of YouTube and related services was a difficult one. The question of whether YouTube’s ill-motivated founders should be allowed to play any role in establishing those rules, by contrast, turned out to be embarrassingly straightforward.”

In the words of John Lennon, how does he sleep at night?