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Copyright Lawyers Oppose SOPA … And Say It Won’t Even Work

George Washington's picture




 

 

SOPA WON’T WORK

 

Many experts have said that SOPA and PIPA are not only draconian, but that they fail to address the root problem.

A former intellectual property law school professor points out:

[SOPA and PIPA] aim to curb online copyright piracy … but end up using a sledgehammer, when a fine scalpel is instead needed.

 

***

 

As reported by Forbes, the Atlantic Monthly
and others, coders are already developing work-arounds to SOPA and
PIPA. For example, a developer using the alias “Tamer Rizk” launched DeSopa,
an add-on for the popular Firefox browser that would allow users to
visit sites blocked by the proposed copyright protection measures
proposed under SOPA. So not only these bills are not only draconian, but they won’t work.

Jay McDaniel – a plaintiff’s attorney for content providers fighting torrent–based copyright infringement – agrees:

There is a simple solution to the dilemma of digital
piracy, however, one that will cost the government nothing, that will
protect free speech and that will ultimately bring an end to a practice
that is undermining the viability of our cultural industries. More
importantly, it will enable Congress to avoid polluting legitimate free
speech issues with behavior that is neither protected by the
Constitution nor lawful.

Simply let copyright holders exercise the right to efficiently
discover the identity of infringers. Copyright law as it presently
exists with its substantial civil remedies will take care of the rest of
the problem.

 

***

 

The answer is simple. Congress should overrule two decisions that
held that copyright owners could not use the Digital Millenium Copyright
Act (DMCA) to subpoena the identities of infringers directly from cable
internet service providers. These two decisions, Recording Indus.
Ass’n of America v. Verizon Internet Servs., Inc., 351 F.3d 1299 (D.C.
Cir. 2003) and In re Charter Communications, Inc., 393 F.3d 771 (8th
Cir. 2005), have made it extremely difficult for copyright owners to
find and prosecute civil claims against the wide-spread piracy that
occurs on peer-to-peer networks.

 

Both cases involved attempts by copyright owners to use a provision
in the DMCA that allows the owners to issue takedown notices to Internet
Service Providers (ISPs) and to also obtain a subpoena to learn the
identity of the infringer. The Verizon and Charter Communications
courts held that the takedown notice-subpoena provisions did not apply
to claims seeking to discover the identity of Internet account holders.

 

It was a strained reading of the statute to begin with, and it has
led to a morass of litigation and discovery disputes in which there are
conflicting jurisdictional and venue decisions on a nearly daily basis.
More significantly these decisions closed the courthouse doors to any
copyright holder that cannot demonstrate widespread copying sufficient
to justify bringing a large “John Doe” action just to find out who the
culprits are. Moreover, in a relatively small number of cases, hostile
district judges are unwilling to let the cases go forward in any
reasonably economic manner.

 

***

 

Copyright holders know that their works are being pirated. They know
where they are being pirated and how they are being pirated. But they
simply cannot get to the pirates. If Congress were to overrule these
decisions, the problem would disappear as the people who break the law
would find themselves facing the serious consequences of a civil
infringement suit. The infringers would pay for the remedy through
statutory fee shifting.

 

Private enforcement litigation would replace the need for government
oversight of our Internet habits, and those who break the law would fund
the system. Digital piracy, in its present form, would quickly come to
a halt for the same reason that we don’t shoplift copies of DVDs from
Walmart. It’s too easy to get caught and the penalties are too severe.

As Harvard law school professor Lawrence Tribe wrote to Congress:

[SOPA] creates confusion and underscores the need to go
back to the drawing board and craft a new measure that works as a
scalpel rather than a sledgehammer to address the governmental interests
that SOPA purports to advance.

COPYRIGHT LAWYERS ARE AGAINST SOPA

 

Indeed, many of the nation’s top copyright lawyers also oppose SOPA and PIPA, including:

  1. Marvin Ammori, Affiliate Scholar, Center for Internet & Society, Stanford Law School
  2. Brook K. Baker, Northeastern University School of Law
  3. Stewart Baker, former NSA General Counsel and Head of Cyber Policy for DHS
  4. Derek E. Bambauer, Brooklyn Law School
  5. Margreth Barrett, Hastings College of Law University of California-San Francisco
  6. Mark Bartholomew, University at Buffalo Law School
  7. Ann M. Bartow, Pace Law School
  8. Marsha Baum, University of New Mexico School of Law
  9. Yochai Benkler, Harvard Law School
  10. Oren Bracha, University of Texas School of Law
  11. Annemarie Bridy, University of Idaho College of Law
  12. Chris Bronk, Rice University
  13. Dan L. Burk, University of California-Irvine School of Law
  14. Irene Calboli, Marquette University School of Law
  15. Adam Candeub, Michigan State University College of Law
  16. Michael Carrier, Rutgers Law School – Camden
  17. Michael W. Carroll, Washington College of Law American University
  18. Brian W. Carver, School of Information University of California-Berkeley
  19. Anupam Chander, University of California-Davis School of Law
  20. Andrew Chin, University of North Carolina School of Law
  21. Ralph D. Clifford, University of Massachusetts School of Law
  22. Julie E. Cohen, Georgetown University Law Center
  23. G. Marcus Cole, Stanford Law School
  24. Kevin Collins, Washington University-St. Louis School of Law
  25. Danielle M. Conway, University of Hawai’i Richardson School of Law
  26. Dennis S. Corgill, St. Thomas University School of Law
  27. Christopher A. Cotropia, University of Richmond School of Law
  28. Thomas Cotter, University of Minnesota School of Law
  29. Julie Cromer Young, Thomas Jefferson School of Law
  30. Ben Depoorter, Hastings College of Law University of California – San Francisco
  31. Eric B. Easton, University of Baltimore School of Law
  32. Anthony Falzone Director, Fair Use Project Stanford Law School
  33. Nita Farahany, Vanderbilt Law School
  34. Thomas G. Field, Jr., University of New Hampshire School of Law
  35. Sean Flynn, Washington College of Law American University
  36. Brett M. Frischmann, Cardozo Law School Yeshiva University
  37. Jeanne C. Fromer, Fordham Law School
  38. William T. Gallagher, Golden Gate University School of Law
  39. Laura N. Gasaway, University of North Carolina School of Law
  40. Deborah Gerhardt, University of North Carolina School of Law
  41. Llew Gibbons, University of Toledo College of Law
  42. Eric Goldman, Santa Clara University School of Law
  43. Marc Greenberg, Golden Gate University School of Law
  44. James Grimmelman, New York Law School
  45. Leah Chan Grinvald, St. Louis University School of Law
  46. Richard Gruner, John Marshall Law School
  47. Robert A. Heverly, Albany Law School Union University
  48. Laura A. Heymann, Marshall-Wythe School of Law College of William & Mary
  49. Herbert Hovenkamp, University of Iowa College of Law
  50. Dan Hunter, New York Law School
  51. David R. Johnson, New York Law School
  52. Faye E. Jones, Florida State University College of Law
  53. Amy Kapczynski, University of California-Berkeley Law School
  54. Dennis S. Karjala, Arizona State University College of Law
  55. Anne Klinefelter, University of North Carolina College of Law
  56. Mary LaFrance, William Boyd Law School University of Nevada – Las Vegas
  57. Amy L. Landers, McGeorge Law School University of the Pacific
  58. Mark Lemley, Stanford Law School
  59. Lawrence Lessig, Harvard Law School
  60. David S. Levine, Elon University School of Law
  61. Yvette Joy Liebesman, St. Louis University School of Law
  62. Peter Linzer, University of Houston Law Center
  63. Lydia Pallas Loren, Lewis & Clark Law School
  64. Michael J. Madison, University of Pittsburgh School of Law
  65. Gregory P. Magarian, Washington University-St. Louis School of Law
  66. Phil Malone, Harvard Law School
  67. Christian E. Mammen, Hastings College of Law University of California-San Francisco
  68. Jonathan Masur, University of Chicago Law School
  69. Andrea Matwyshyn, Wharton School of Business University of Pennsylvania
  70. J. Thomas McCarthy, University of San Francisco School of Law
  71. Aleecia M. McDonald, Stanford University
  72. William McGeveran, University of Minnesota Law School
  73. Stephen McJohn, Suffolk University Law School
  74. Mark P. McKenna, Notre Dame Law School
  75. Hiram Melendez-Juarbe, University of Puerto Rico School of Law
  76. Viva Moffat, University of Denver College of Law
  77. Ira Nathenson, St. Thomas University School of Law
  78. Tyler T. Ochoa, Santa Clara University School of Law
  79. David S. Olson, Boston College Law School
  80. Barak Y. Orbach, University of Arizona College of Law
  81. Kristen Osenga, University of Richmond School of Law
  82. Frank Pasquale, Seton Hall Law School
  83. Aaron Perzanowski, Wayne State University Law School
  84. Malla Pollack Co-author, Callman on Trademarks, Unfair Competition, and Monopolies
  85. David G. Post, Temple University School of Law
  86. Connie Davis Powell, Baylor University School of Law
  87. Margaret Jane Radin, University of Michigan Law School
  88. Glenn Reynolds, University of Tennessee Law School
  89. David A. Rice, Roger Williams University School of Law
  90. Neil Richards, Washington University-St. Louis School of Law
  91. Michael Risch, Villanova Law School
  92. Betsy Rosenblatt, Whittier Law School
  93. Matthew Sag, Loyola University-Chicago School of Law
  94. Pamela Samuelson, University of California-Berkeley Law School
  95. Sharon K. Sandeen, Hamline University School of Law
  96. Jason M. Schultz, UC Berkeley Law School
  97. Jeremy Sheff, St. John’s University School of Law
  98. Jessica Silbey, Suffolk University Law School
  99. Brenda M. Simon, Thomas Jefferson School of Law
  100. David E. Sorkin, John Marshall Law School
  101. Christopher Jon Sprigman, University of Virginia School of Law
  102. Katherine J. Strandburg, NYU Law School
  103. Madhavi Sunder, University of California-Davis School of Law
  104. Rebecca Tushnet, Georgetown University Law Center
  105. Deborah Tussey, Oklahoma City University School of Law
  106. Barbara van Schewick, Stanford Law School
  107. Eugene Volokh, UCLA School of Law
  108. Sarah K. Wiant, William & Mary Law School
  109. Darryl C. Wilson, Stetson University College of Law
  110. Jane K. Winn, University of Washington School of Law
  111. Peter K. Yu, Drake University Law School
  112. Tim Zick, William & Mary Law

For further background on the internet copyright bills, see:

 

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Tue, 01/10/2012 - 01:46 | 2049247 gwar5
gwar5's picture

Told you George. When it comes to fascism Bush was a piker compared to the neo-fascists led by Obama. Fascism is the merger of government and corporate enterprise and that is exactly what is happening. It's already done with Wall Street, the markets, and the media. 

 

Thanks to Obama, we now have spying on Americans on the internet, highway road stops by the TSA, financial repression, the money police ready to impose economic martial law thru the FED's CFPB, strip searching little old ladies at airports, many more wars than Bush, forced health care rationing, theft by debasement of currency, state media directed by the White House, massive crony corruption by the Wall Street banks, and soon, gun toting martial law and suspension of habeous corpus, all from those "humanist" do-gooder progressives which are far far worse than Bush.

Their entire agenda is sacrificing American personal liberty for more central control. Their leftist hero, Saul Alinsky, even dedicated his book to Lucifer whom he praised as the first radical. What did you expect?

I had high hopes for OWS, but they are clearly being driven by Obama's brownshirt activists like Van Jones, showing up at opposition events  -- they're not marching on Obama and his fascist Wall Street cronies.

 

Tue, 01/10/2012 - 00:20 | 2049047 rsnoble
rsnoble's picture

SOPA is draconian? What about the fucking NDAA?? If you see our worthless US politicians slam this one thru......game fkn over.  As far as im concerned...........fuck you morons.  The words out.  Every horseshit maneuver just concretes the idea that we are being led to the slaughter. 

My main thought right now, as a proud gun owner, is that you fuckers better not let me down when the rough gets going.  Nothing worse than being surrounded by a bunch of chickenshit sellout pussies.  Either go out standing or admit you like being on your knees.

Tue, 01/10/2012 - 00:10 | 2049014 Coldfire
Coldfire's picture

There is something very fishy about the government going to the barricades for individual property rights. I mean, in this day and age? Really? No. SOPA is not primarily about copyright, it's about controlling the internet. From the same traitors who brought you martial law through the NDAA. The stench of US fascism grows by the day.

Tue, 01/10/2012 - 00:51 | 2049125 DeadFred
DeadFred's picture

There have always been two things preventing me from going full blown paranoid, it seemed clear that "They" if they existed and wanted complete control would need to neutralize the internet and confiscate guns. Without those obedience couldn't be assured. Oh well.

Mon, 01/09/2012 - 23:19 | 2048810 Pants McPants
Pants McPants's picture

Free speech does not require "copyright" lawyers to justify its existence, though their approval strengthens the appeal to the masses. 

Copyright and patent lawyers are another arm of government....esentially put in place to ensure .gov gets its take from profit.  I see no need for either of them.

 

Mon, 01/09/2012 - 23:13 | 2048768 DaveyJones
DaveyJones's picture

McDaniel's got it right and Tribe's no slouch

Mon, 01/09/2012 - 22:55 | 2048690 OldTrooper
OldTrooper's picture

Uhm, makes sense...if the real reason for SOPA is to protect copyrights instead of a nefarious plot to turn the maximum number of people into felons, ready to be plucked off the street on a moments notice.  Gee, I wonder why the Feds are hell-bent on passing SOPA?

Mon, 01/09/2012 - 22:36 | 2048574 williambanzai7
williambanzai7's picture

Those are primarily copyright professors not practicing lawyers. There is a practical difference.

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