Friday, February 03, 2012

The Permission Culture

Being the general counsel for the largest online rater and reviewer of lawyers, I get my share of heated correspondence from lawyers.  And one common question is why we didn't ask permission before posting an attorney's licensing details online.

It's a vexing question.  Not because the substance of the question is difficult to answer - rather, it's difficult to answer in a way that is not overly rude and/or condescending.  Why? Because it should be blindingly obvious that we don't need their permission.  

Asking for permission implies the conferring of a right not otherwise present.  Decorum also demands that it be limited to those areas where one plans on honoring the denial of permission.  As we have a clear First Amendment right to publish, and no intention of only publishing material for which consent has been granted, it would be both pointless and in bad form for us to ask for permission.  

I wonder, however - as I see the latest round of the NFL trying to prevent use of the term "Super Bowl"without permission (note: I did not obtain, nor ask for, permission to refer to the SUPER BOWL).  Super Bowl, Super Bowl, Super Bowl  . . .

Anyway, where was I?  Oh, yes - this NFL silliness (SUPER BOWL!!!), along with the consistent drumbeat I hear from lawyers over permission, raises the question of whether we lawyers have too strong of a bias for permission.  Just as lawyerly training can lead to a blinkered desire to mitigate every risk, regardless of cost or lost opportunity, does our reliance on case law and statute tend to immobilize us from taking action unless there is clear precedent saying "yes, really, it's OK?" To think that we can't do anything out of the ordinary without permission? My experience would say that it does.

This is a problem, because it leads to situations like the ridiculous demands for permission that I get, or the ludicrous position taken by the NFL and other trademark or copyright holders that even clear-cut cases of fair use are infringing without permission.

A culture of permission-only is a poorer culture all around.  And it's bad for lawyers and their clients, as asking for permission in cases where it's not required leads to confusion and missed opportunities.  Let's limit permission to its intended uses: when we're seeking a dispensation (by asking for a right), or granting one (by letting someone else decide whether we get to exercise a right we already have).

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