Yesterday, after 24 hours of continuous bailing out of water from my flooded basement, I had the chance to talk to Hugh Laddie, also known as Sir Hugh Laddie, Mr. Justice Laddie, and now Professor Laddie. HL (for short) was in NYC briefly, and is one of the most extraordinary figures in IP, indeed in the entire worldwide legal community. After 25 years as an IP barrister (QC), he was appointed a High Court Judge in 1995, hearing cases in the Chancery Division and Patents Court (which includes copyrights). He resigned in 2005, the first High Court judge to do so in 35 years. His resignation caused a furor (in British spelling "furore," signifying a great degree of sturm und drang than the shorter, more base U.S. emotion). What added poignancy to his resignation was that it wasn't a retirement; HL didn't go off to practice fly fishing. Rather, declaring boldly but honestly that he felt isolated on the bench, he expressed a desire to return to private practice, to go back to the "fun and mutual support of working in a team."
In the U.S., this last statement would, without question, be interpreted as code-words for "I need the money and have to finally go out and make a living." But, HL's remarks were genuine, as seen in his decision not to go with a high-paying platform, say an American firm with a London office, and to instead become a consultant with the IP boutique Willoughby & Partners, and to become the chair of the IP program at University College, London. The Willoughby in the firm's name is Tony Willoughby. Mr. Willoughby had been a highly regarded partner in one of London's largest law firms, Herbert Smith, but decided to leave to go with a more intimate but less remunerative environment. HL had once before made a move that caused gasps, and that was in 1995 when he gave up a lucrative private practice to go on the bench for a pittance. He thought it the right thing to do then, and his move off the bench was the right thing for him too.
HL has been a brilliant iconoclast his entire career. In 1980, he, and two like-minded co-authors, Peter Prescott and Mary Vitoria, took on the long-reigning Copinger and Skone James treatise in their "The Modern View of Copyright and Designs." The book went in to a second edition in 1995, a third in 2000 (with two new co-authors Adrian Speck and Lindsay Lane), and rumor has it there may be a 4th edition. Their book was adventurous and innovative and didn't shy away from criticizing sacred cows. Paul Torremans, reviewing the third edition in EIPR in 2001, described some of the chapters as revolutionary. He referred specifically to their pointing out problems with the way that EU Directives have been implemented in the UK. HL put his views into practice on the bench in what may be his most controversial opinion, a trademark case, involving the Arsenal football club. As described years ago by Marty Schwimmer:
A vendor sold scarves wtih the Arsenal football club name and indicia. The issue turns on whether use of a team name in such way is trademark use in that sense that the team name designates the origin of the good, or is the team name and logo merely decorative use in the sense that the wearer of the scarf is merely communicating allegiance to that team. It's my understanding that Laddie himself tends toward the latter view ... . Laddie referred the case to the ECJ. Now that the ECJ has ruled that of course it's trademark use, Laddie has refused to follow its decision, apparently relying on the fact that the ECJ made fresh findings of fact, something it had no power to do.
The court of appeals reversed him. Reversal by a higher court doesn't of course mean HL was wrong, only that he had the courage to point out the dangerous usurpation by the EU, an "Emperor Has No Clothes" statement that must have embarrassed the court of appeals. May we all emulate him. Nor did his opinion stem from antipathy toward EU rights. Quite the contrary, in his earlier, 2001 Burrell Competition Lecture, "National I.P. Rights: A Moribund anachronism in a Federal Europe," 23 E.I.P.R. 402 (2001), he concludes "Now that we are in a single market, our domestic economy is Community-wide. So should our I.P. rights be. ... I can only hope that the Community trade mark will prove such a success that users will vote with their feet and will use it to the exclusion of national rights."
In another speech, the 1995 Stephen Stewart lecture, "Copyright, Over-Strength, Over-Regulated, Over-Rated," 18 E.I.PR. 253 (1996), given the year he joined the bench, he bravely attacked term extension, and even more bravely perhaps criticized the UK's fair dealing provisions, commenting favorably on the broader U.S. fair use, tying the restrictiveness of the U.K. fair dealing regime to a tendency toward more expansive rights at the expense of the public, what he called "a complacent certainty that wider copyright protection is morally and economically justified." He then asked rhetorically, "But is it?"
His copyright opinions as a judge are legendary, and too numerous to list (although very worth reading carefully as I have and repeatedly do), but what one finds throughout is a refusal to be taken in by copyright's equivalent of stupid little pet tricks: efforts to encapsulate complicated, Black Swan issues into generic tests so beloved by those who love to give the appearance of thought but who are deathly afraid of what that actually means in practice. I am convinced that this is what is meant when one is described as an iconoclast: an iconoclast is one who thinks and thinks for him or herself. My treasured friend Judge Pierre Leval is an iconoclast under this definition: his approach is to disassemble everything and put it back together again in a way he is satisfied with. Sometimes the reassembled form looks like it did before it was taken apart, sometimes it doesn't. Judge Leval goes through this ritual because it is the way his mind works, it is how he understands things. Lesser lights would simply look at what other judges had said on the matter. Judge Posner goes further and refuses to even acknowledge the legtimacy of boxes, much less to think within them. And so it is with all original thinkers; they think and they originally, that is, for themselves free of the baggage of others.
HL is an iconoclast and a particularly brave one, and if I have any advice to give to young lawyers it is to ignore what everyone else says as an initial matter and decide what works for you. You can then check your conclusions against others and always should: the worst intellectual sin is hubris: we are always our own greatest impediment to intellectual and moral development. My late mother, aleha hashalom, impressed upon me the religious obligation to learn every day, but we can't learn unless we are willing to strip away what other people say they have learned; it has to be our own learning to be genuine: one can inherit many things, even treatises, but knowledge and wisdom have to be acquired though your own life.
HL has lived his own life and is truly a man for all seasons, a Greek among the Romans. I regret deeply he is not on this side of the pond to stiffen our backs. I know I would be a far better person if he was.