“I just want to sue people,” said the prospective law student sitting behind me at the annual LSAC conference.
It’s an all too familiar phrase and one that perhaps all of us law students, current and prospective, are guilty of uttering at one time or another. It’s not surprising. Here in the U.S., legal pop culture thrives on stories about dramatic litigation, heated courtroom debates, and eccentric big law personalities hurling slews of fast-spoken quips. Throw on an episode of Suits and you’ll see what I mean.
Ironically, it took two years of law school for me to realize that, for the most part, litigation isn’t really “good” for anyone (except the lawyers). So why do we fetishize it? Why do we fixate on achieving what essentially amounts to financial ruin, damaged reputations, and shuttered businesses? Like doctors and nurses that pride themselves on saving lives, shouldn’t we pride ourselves on preventing litigation? But hey, that’s not what makes Suits so entertaining.
Now, I know what you’re thinking, sometimes litigation is the only means available for clients to get real relief. Granted. But just like candy and cookies and day drinking, moderation is key.
At the end of this semester, I was required to write a paper for my Internet law course about something that surprised, frustrated, or angered me about Internet law. Naturally, I think about the Veoh case a lot. In 2007, Universal Music Group (UMG) sued Veoh, a video-upload website similar to YouTube or Vimeo, for the infringing uploads by Veoh’s users. In 2009, UMG lost. UMG appealed and lost again in 2013 thanks to the Digital Millennium Copyright Act’s 512(c) safe harbor. Immediately following, Veoh went bankrupt and eventually, offline.
Pause for a second. Who won here?
As a future lawyer, Veoh makes me uncomfortable. We know Veoh did everything right because they “won.” And isn’t the entire point of a safe harbor to prevent these fatal consequences in the first place? Yet, nobody, except the lawyers, really won in Veoh. But Veoh isn’t special. Surprisingly, every case we read in Internet law ended on a similar note: even when you win, you lose.
Today, we continue to see the consequences of pyrrhic legal victories with examples like “Gifgate” and the Baby Yoda meme debacle. Though it’s unclear whether Disney had a hand in Giphy’s removal of the memes, one thing was certain: everyone lost again. Disney lost an amazing marketing opportunity (memes = free advertising), Giphy probably lost ad revenue, and us users lost creative expression. So who won?
That’s where shows like Suits fail. They leave out the denouement. They leave out the part where the winning plaintiff suffers reputational ruin at the hands of the Streisand effect. Or the victorious startup that goes bankrupt and shuts down forever. The frustrating part in all of this is figuring out where we fit in as counsel. As an Internet lawyer, do I measure success in the amount of cases won and content removed? Or does success derive from number of lawsuits avoided and money saved?
Even more frustrating, while the offline world provides tons of legal tools for attorneys to use at their disposal, for Internet lawyers, there will always exist the very real possibility that none of those tools will work for a specific online problem. Worse, even the tools created to solve Internet-specific problems still fail, as we saw in Veoh. So, what are we supposed to do?
We can start by changing the way we think about litigation, regulation, and the Internet.
Congress did that in 1996 when they enacted Section 230 of the Communications Decency Act – the law that immunizes websites from liability for user generated content. States like California did it too in enacting aggressive “anti-SLAPP” laws that punish frivolous litigants. In prioritizing the needs of small Internet companies to innovate, grow, and adapt within seconds (the time it takes Internet users to discover a website and decide whether they’ll stay), Congress got Section 230 right. On the other hand, in prioritizing the needs of litigants, 512 became a convoluted mess resulting in many more Veohs. So, the takeaway is clear: what we choose to prioritize as future policymakers and litigators will be monumental for enacting change in our legal system.
But what about the victims, you ask. What about the Ken Zerans, Cynthia Morenos, and Mallory Grossmans? Well, that’s why I’m writing this paper. That’s the angered part. Because after almost two years of law school and a semester of Internet law, I still don’t have an answer. In the offline world, you can’t go around defaming people without consequence. But online, how do you go after a username, a persona, an anonymous troll? And in doing so, you run the risk of adding more insult to injury or, perhaps worse, implicating an innocent online bystander.
Those feelings of surprise, anger, and frustration are merely byproducts of a legal system that has consistently failed an entire legal field. But you won’t get that from Suits.
As future attorneys, we have to start thinking about the consequences that come with wielding a J.D. We can change toxic pop culture stereotypes by changing our attitude about the justice system and by thinking deeply about alternatives that keep our clients out of courtrooms and the spotlight. Instead of getting to maybe, we should focus on getting to why.
And as for us future Internet lawyers, we must recognize that our legal system was not designed to handle the online world’s nuances. For us, we face one more challenge: finding legal solutions and remedies that are just as unique, special and different as the Internet demands.
This post was adapted from my final course paper and inspired by my Internet law professor, Eric Goldman and his 2013 Forbes article: Want To End The Litigation Epidemic? Create Lawsuit-Free Zones.