It's Not My Job

I don't know Stephen Bainbridge of UCLA, but I often see his stuff on the internet, and just about as often, I disagree.

His latest piece, at TCS Daily, is on the CBS lawsuit against Howard Stern, which he thinks has great merit. He doesn't discuss all the claims, but feels that Stern was an agent of CBS when he worked for them, and thus all his discussion on air of his move to Sirius radio, along with his railing against CBS censorship, was illegal soliticitation of business for a rival business before his contract had ended.

Normally, the points Bainbridge make would be powerful, even dispositive. If you work for Business A and know you're moving to Business B, you can't spend your last few months of employment intentionally hurting A and helping B.

But Stern's job is special, perhaps unique. He's a radio DJ who has made a career--a highly successful career--out of talking about what's going on with his life (and his crew's lives) at the time. When he made a movie, he talked about the movie. When he wrote a book, he talked about the book. When he had a TV show, he talked about the TV show.

It is true that CBS sent him warnings (I'd call them legal CYA warnings) about talking up Sirius radio, and even suspended him for a day (another legal maneuver, I'd guess); however, if they felt they were being seriously hurt more than helped by what he was openly and notoriously doing on the air, at any time they could have removed him. They made the calculation that his popularity and his expertise was great enough that he should be allowed to continue his show up till the last moment. (Stern himself wondered on the air for quite a while if he would be fired before his time was up.) As far as I'm concerned, this should weigh heavily in the court case--CBS's actions, in effect, were a waiver of their right to collects for Stern's breach of fiduciary duties.