The Long Reach of the Law(yers)...

The reach of the "law" into everyday affairs is becoming a crisis.

For example, consider the case of Righthaven, which I wrote about before (see current information here) as well as the the "Nude Nuns" case (see my post here).  In both cases the question of "how far in" can the law reach and can that reach be commercialized.

In another case the Mayo Clinic is trying to prevent Prometheus Laboratories Inc. from patenting a process that in involves observing how the human body reacts to drugs.  Mayo argues that the observation of a natural process - your body processing a drug - is a purely natural phenomena and cannot be patented.

The real questions involve the meaning of "ownership" in the case of nebulous items.  (Clearly there can be questions of ownership over even simple, concrete things, say, like a cup or a stick.) When cases involve rights or downloads or "fair use" as well as ownership things become even less clear - with the issues of patenting "natural" things like DNA or human bodily functions at the extreme end.

The reason for all of these issues today, I believe, stem from the the Supreme Court ruling in Bates v. Arizona State Bar 433 U.S. 350 from 1977.  This ruling allowed lawyers and law firms to advertise publicly for the first time in the 1970's.

Prior to this lawyers did not advertise but instead relied on professional contacts, word of mouth, recommendations, and so forth to attract clients.  Advertising was considered "crass" and was typically strictly forbidden by state Bar associations.  Lawyers were assumed to have a good client list based on their good reputations.

Money, success and business were derived from holding yourself (as a lawyer) to the highest standards in order to build a sterling reputation.  Since lawyers take an oath as representatives of the court this made sense - you can't have the court (and the neutrality of "justice") up for sale based on the highest bidder or on who can run the most egregious ads.

My how things have changed.

Bates started off with good intentions - the case was over the right to advertise low cost legal services - low cost divorce, etc. by a couple of lawyers in Arizona.  Eventually the case reached the Supreme Court where it was decided that advertising by lawyers was "commercial free speech" and therefore it could not be limited under state law or by Bar associations.

Today, lawyers advertising coupled with the fact that typical fee structures involved the lawyer's fee being paid out of whatever proceeds are garnered (typically at a rate of 30% or so), there are no limits to what a lawyer can sue over.

In the case of patents, its even more egregious with patenting of DNA sequences and the like.  Large companies with huge legal staffs can wear down any small-time operator that attempts to challenge the big concerns turf.

Just because you can does not mean you should...

Sadly I do not see lawyers putting the "genie" back into the bottle anytime soon.

One would imagine that anyone taking an oath as a officer of the court would necessarily limit themselves regarding the taking advantage of others and the "system" - but this is simply not true today.

Things like copyright trolling and other activities will only grow as the pool of potential legal liability grows.   While Righthaven is now losing - because of standing issues - don't expect it to be the last trolling case.  Other, more efficient lawyering outfits will figure out better approaches to extract fees and settlements from the unsuspecting.  (In the case of Righthaven some who paid settlement fees are now contemplating counter suits.)

The digital age is changing how things work and the law is not keeping up the pace - and because of this unscrupulous lawyers are taking advantage of those who are less technologically sophisticated or who are simply unfortunate to be in the wrong place at the wrong time.