Internal Fight Within The ABA Over Position On SOPA

from the legal-food-fight dept

Mon, Dec 5th 2011 1:12pm — Mike Masnick

We've noted in the past that there's been a bit of a debate within the American Bar Association concerning the position it should take on SOPA/PROTECT-IP. It seems that the fight is heating up, and different kinds of lawyers are fighting about it. The Trademark Legislation Committee agreed to and adopted (by a pretty wide margin) a resolution saying that SOPA needed significant changes to prevent abuse. A key change? That the private right of action should be filed "under penalty of perjury," rather than the toothless sanctions for those who file bogus takedowns. This seems like a reasonable suggestion to prevent abuse, and the Committee agreed.

But... then the copyright lawyers flipped out. Despite this and other suggestions already being agreed to, the copyright folks proposed a bunch of changes -- including deleting the "penalty of perjury" inclusion. Another change? The trademark lawyers had agreed that the private right of action definition of "dedicated to theft of US property" should be much more limited, adding significant qualifiers to what is covered to deal with the vagueness of the definition. The copyright lawyers want that deleted as well.

Further on that point, the letter the trademark lawyers prepared highlighted serious concerns about how vague the definition of "dedicated to theft of US property" is, and pointed out how it has significant inconsistencies that "need to be addressed." The copyright lawyers? Apparently they don't want to address the inconsistencies and want the whole complaint about the language dumped. Specifically, here was the recommendation that had been approved:

As worded, the definition of web sites that are �Dedicated to Theft of U.S. Property,� which forms the basis of liability pursuant to this bill, is vague and requires some clarification. Specifically, § 103(a)(1)(B)(i) provides three different ways in which a U.S. directed site could have exposure to action under this bill: 1) if it is �primarily designed or operated for the purpose of . . . offering goods or services in a manner that engages in, enables, or facilitates� a violation of 17 U.S.C. § § 501 or 1201, or counterfeiting under 15 U.S.C. § 1116(d) or 18 U.S.C. § 2320; 2) if it �has only limited purpose or use other than . . . offering goods or services in a manner that engages in, enables, or facilitates� the same violations; or 3) if it �is marketed by its operator or another acting in concert with that operator for use in offering goods or services in a manner that engages in, enables, or facilitates� the same violations.

Option three in this series does not require a showing that the marketing efforts have a primary purpose of, or have a limited purpose other than, infringing these intellectual property rights. We believe this inconsistency needs to be addressed to reduce possibility of abuse that could result in the effective shut down (by disabling a revenue stream) of an otherwise legitimate web site that offered a single product later determined to be a counterfeit.

In order to effectuate this purpose, option three in the series identified above should be modified to reflect a narrow interpretation of the definition of �Dedicated to Theft of U.S. Property.�

The copyright lawyers? Want that whole section left out. Basically, it looks like anything that highlights the serious problems of SOPA should be taken out, according to the copyright lawyers. The stuff left in is minor and inconsequential.

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Filed Under: copyright, lawyers, perjury, pipa, private right of action, protect ip, sopa
Companies: aba

17 Comments

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Hulser (profile), 5 Dec 2011 @ 12:53pm

SOPA disappears in a puff of logic
�Dedicated to Theft of U.S. Property.�

Well, as we all know, copyright infringement isn't theft, so none of this applies to online piracy of digital goods. Problem solved!
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Jay (profile), 5 Dec 2011 @ 1:14pm

Re: SOPA disappears in a puff of logic
Maybe this is how lawyers outlaw dancing. And pacifiers!
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Louis dagnese, 5 Dec 2011 @ 1:24pm

Tremix
I would to buy this product and u help me thank u louos
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AJ (profile), 5 Dec 2011 @ 1:25pm

Re: SOPA disappears in a puff of logic
Bah... those idiots never let a little logic get in the way of a good ole fashion hanging... once due process gets his neck stretched, we'll figure out if he was actually guilty.....

When I think of our congress, this is the visual I get.......

Hedley Lamarr: Meeting adjourned. Oh, I am sorry, sir, I didn't mean to overstep my bounds. You say that.
Governor William J. Le Petomane: What?
Hedley Lamarr: "Meeting is adjourned".
Governor William J. Le Petomane: It is?
Hedley Lamarr: No, you *say* that, Governor.
Governor William J. Le Petomane: What?
Hedley Lamarr: "Meeting is adjourned".
Governor William J. Le Petomane: It is?
Hedley Lamarr: [sighs, then gives the governor a paddleball] Here, sir, play with this.
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Anonymous Poster, 5 Dec 2011 @ 1:28pm

This is precisely why I don't believe in "intellectual property" laws.
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ScytheNoire, 5 Dec 2011 @ 1:31pm

Just end it already
Can we just end all this stupidity already and put an end to Copyright. It's only used for monopolies, control, and censorship. None of those are a good thing. So just get rid of it already so artists are free to be creative and lawyers can go on to do something more useful. Still not sure what that would be.
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David (profile), 5 Dec 2011 @ 1:34pm

Of course there is
If there wasn't a split among lawyers, how would someone represent both sides when the lawsuits start flying?
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Anonymous Coward, 5 Dec 2011 @ 1:36pm

Of course they do. Copyright lawyer = Troll. Narrowing the scope of SOPA would significantly narrow what they can sue over.
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Another AC, 5 Dec 2011 @ 1:51pm

Since when do we care what lawyers think?
Just sayin'.
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RadialSkid (profile), 5 Dec 2011 @ 1:52pm

Re: Just end it already
I'm finding myself in agreement with this mentality lately. I was for scaling back copyright, but the more B.S. it leads to every day, the more I think the baby should be thrown out with the bathwater.
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abc gum, 5 Dec 2011 @ 2:07pm

"there's been a bit of a debate within the American Bar Association concerning the position it should take on SOPA/PROTECT-IP"

They should just enjoy their Mexican pastry ... SOPA-PIPA
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SAG, 5 Dec 2011 @ 3:57pm

Re: Of course there is
Please? If this doesn't rate a "sad but true" button, nothing would!
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Edward Teach, 5 Dec 2011 @ 9:49pm

Arr, matey, Laws be good for Lawyers!
So this sort of thing basically means that SOPA will be passed intact, right? That SSRN paper about Judges ruling consistently in favor of *lawyers* presages how this law will turn out, given that the bulk of the US Congress and Senate members are lawyers.

This does make the copyright lawyers look like they want to appear as two-faced shysters, but really, that's their choice, isn't it?
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Athox, 5 Dec 2011 @ 10:27pm

Re: Just end it already
Anything but being a lawyer is useful.
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Anonymous Coward, 7 Dec 2011 @ 11:18am

Re: Arr, matey, Laws be good for Lawyers!
Um, no, you fucking faggot, it won't pass.
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NLMJ, 7 Dec 2011 @ 11:56am

As a copyright attorney, and a member of the ABA, I think SOPA is vastly over-broad and over-reaching. Not all of us agree, and being cast in the same mold is intellectually offensive. Maybe it is time I petition to get on these committees. Someone has to argue for some sense.
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Mimi, 16 Dec 2011 @ 6:22pm

Please sign this petition to STOP S.O.P.A: http://www.change.org/petitions/congress-do-not-pass-the-sopa-bill
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