Kill All the Lawyers?

When my wife was still in high school she embroidered a wall hanging for her brother. It featured that famous quote from Henry IV, “First Thing We Do, Let’s Kill All the Lawyers.”

Her brother was in law school at the time. He loved it.

The fact is even lawyers know the law is a blunt instrument. On the web, lawyers serve as a barrier to competition. If you’re big and in the wrong, while your opponent is small and in the right, your suit may bankrupt the opponent anyway. If you’re big enough, and can hire enough lawyers, you can stop just about anything. That’s why rich people don’t get executed, and why Microsoft will never really lose its legal fight with the U.S. government.

Lawyers do a lot of good, and I know liberty means nothing without the rule of law. But lawyers can also abuse and twist the law (at the behest of their clients).

There are days when I wish we had a system like Australia’s, where the loser pays the costs of a case. The system does bankrupt some worthy people who, though certain that they’re right, lose anyway, and it keeps other worthy suits from being brought forth at all. But it might cut out some of the legal bullying that’s now taking place over online issues.

Even the threat of a suit can be powerful. Universal Studios and eBay both threatened suits recently, claiming a “right” to control incoming links.

TicketMaster sued Microsoft over the same issue, and Big Green eventually sold the Sidewalk sites in question to CitySearch, owned by the same folks as TicketMaster. The “link license” claim is nonsense, in my opinion, but until a judge says so, it’s a business reality we all have to deal with.

Even a legal victory may not be enough for a small site. Mark Welch put his site up for sale after being sued by Sanford “Spamford” Wallace. Even though the case was dropped, the point was made and the damage was done.

Clue Computing, a small web host in Colorado, is now begging for contributions after winning its struggle with Hasbro over its domain name.

But lawyers can also clarify important questions, and provide a valuable service to those who aren’t party to the suit. A site called WhatsHappenin is now suing a similar site called QuePasa, claiming the Spanish translation of its name infringes on its trademark. A win by Que Pasa might settle important questions, and the stomachs of many site managers.

The same might happen if the suit between Priceline and Microsoft over Expedia goes to the jury.

The breadth of patents on business processes is an issue that deserves clarification. Now if someone would just take on Unisys over its claimed ownership of the .gif format, maybe we could sleep at night.

Still, the question must be asked, so I’m asking it of you. When are lawyers heaven-sent, and when should they be burned in oil? Let’s talk about it.

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