Standing problem, perhaps; message of the N2H2 suit stands.

The lawsuit brought by Berkman student fellow Ben Edelman has prompted even those sympathetic to the cause of a free and open net to note that the “standing problem” in the case was too great to overcome.  Perhaps.  But I think the message of this lawsuit is larger than whether someone in a particular legal dispute has standing or not.  The issue is whether our system of intellectual property protections strike the right balance between incentivizing creativity on the one hand and a whole host of other valid interests on the other.  One such interest to be balanced is the public domain (see Eldred).  Another interest is the right to free speech, which is inherently bounded by copyright and other IP protections (also see Eldred, but many other disputes, including N2H2).  Another such interest in the ability to conduct research of the sort that Ben Edelman sought to conduct here at the Berkman Center at Harvard Law School.  Setting aside whether the judge got it right on the merits of this case, the core element of the complaint remains unresolved.  Our IP system in the United States is not sufficiently flexible to allow genuine, not-for-profit research into how new technologies work.  We shouldn’t have to go to court to establish that right.