I prefer to describe this as the basic problem of trying to implement a contradiction in reality. Add to that the inevitable expansion of the state in the hands of state capitalists (as opposed to a true free market) and it is equally inevitable that IP will trump private property. Lessig has no fucking clue as to why he must lose this fight because he is fighting with one (or even both) hands tied behind his back as a result of fundamentally flawed thinking. You cannot justify intellectual property which is an oxymoron and then hope to restrain the laws concerning it.

Commonsense is as the name implies, “common,” that is, just about everyone agrees on the best outcome. It has been my observation that indeed most people agree how most issues surrounding Rights in Law should work out as a final effect, the arguments seem to dwell on the mechanism, particularly if it requires the dreaded “Judgement Call”. Other concepts like “setting a precedent” (without understanding what that means under Common Law) or the sophomoric “slippery slope” argument that is flung about in discussion as if it were a scientific fact, are also invoked as valid when they are not.
I agree that it is harder to work rationally than to apply the mindless application of a rule, but not only does flexible interpretation improve the application of the law, it also puts it under continuous review. Remember the law is there to serve us, not the other way around.

Whose common sense?

And that’s the crux of the problem indeed in a culture that is becoming addicted to the “three ring binder” mentality of rule based decisions. Law that is inherently in tension can only be applied with common sense.