January 16, 2003 · Lessig
So I’ve got to go get onto a plane to go to my least favorite city (DC). My inbox is filling with kind emails from friends. Also with a few of a different flavor. It’s my nature to identify most closely with those of the different flavor. David Gossett at the law firm of Mayer Brown wrote Declan, “Larry lost Eldred, 7-2.” Yes, no matter what is said, that is how I will always view this case. The constitutional question is not even close. To have failed to get the Court to see it is my failing.
It has often been said that movements gain by losing in the Supreme Court. Some feminists say it would have been better to lose Roe, because that would have built a movement in response. I have often wondered whether it would ever be possible to lose a case and yet smell victory in the defeat. I’m not yet convinced it’s possible. But if there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has. When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, “this makes no sense,” then it makes no sense. Let that be enough to move people to do something about it. Our courts will not.
I will always be grateful to Eric Eldred, and our other plaintiffs, for putting his faith in this case. I will always regret not being able to meet that faith with the success it deserves.
What the Framers of our constitution did is not enough. We must do more.