David Boies and Ted Olson are this week’s odd couple after the pair teamed up to file a constitutional challenge to California’s gay marriage ban Wednesday. The two lawyers made headlines in 2000 when they squared off before the U.S. Supreme Court in Bush v. Gore, with Olson representing Bush and Boies representing Gore. Despite the acrimonious election battle, Boies and Olson aren’t mortal enemies. They’re lawyers–people schooled in the notion that an adversary is not an enemy.
As such, Olson and Boies are so friendly that last summer they took a bike trip through Italy with Tom Brokaw and media mogul Steve Brill, who, incidentally, is now responsible for another one of their joint ventures: Journalism Online, Brill’s new attempt to save journalism by making people pay for it online. Boies and Olson are on the company’s board of advisors. But Brill didn’t pick the pair for the novelty factor. His legal team suggests that he intends to start the war that newspapers so far have shied away from: forcing Google pay for the news content it now steals for free.
One of the biggest obstacles to the newspaper industry’s getting revenue from search engines is newspapers’ inability to band together to create a unified payment system for online content–a roadblock that stems in part to the nation’s antitrust laws. But Boies is one of the nation’s preeminent antitrust lawyers, having taken down Microsoft as a prosecutor during the Clinton administration and later representing Napster against the music industry. And Olson is no slouch in the antitrust department, either. In 2007, he won a major victory before the Supreme Court in a case called Leegin v. PSKS. The decision drove stake through one of the nation’s oldest and most settled pieces of antitrust law. No doubt Brill is counting on the combined legal heft of Olson and Boies (along with a lot of money), to finally get Google to cough up some cash to save the newspapers whose content it so profits from.