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

 

SOPA Won’t Work

Many experts have said that the Stop Online Privacy Act (SOPA) and Protect IP Act (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, and  proposes a better alternative:

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.

Obviously, the law should be crafted so that discovery can only be used against actual copyright pirates, not political commentators or bloggers who – under the fair use and My Lai/Zapruder exceptions to copyright law – use portions of copyrighted material for political or social commentary, or for educational purposes.  In other words, copyright law should never be used to crush dissent.  (We understand that some – like Amir Taaki – promote the destruction of all copyright laws.  We don’t agree with that view.)

Many Copyright Lawyers Oppose SOPA

Indeed, many of the nation’s top copyright lawyers 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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  • jjohnson

    “Simply let copyright holders exercise the right to efficiently discover the identity of infringers.”

    Yes get rid of anonymity.

    Big Brother can rule easier!

  • Anon

    Neither SOPA nor litigation is a good solution, GW. And by the way, people do shoplift DVD’s from walmart everyday because sometimes they get away with it…

  • jjohnson

    Have you sold out to the Motion Picture Industry?

  • mary gold

    But SOPA & Acta are not only about copyright infringment, there are further gov censorships in the wings. Government & power elites want to “Sanitize” the internet to their specifications. They want to shut down Canadian & overseas pharmacies ( no doubt at the behest of Big Pharma) after all seniors are getting Rx at half US Cost !!! Want to go to an alternative Health site ??? Not in the Orwellian Internet you won’t, just their version of medically sound sites. Want to “check out ” neo nazis to study wants out there? No hate sites ! (boo-hoo they hurt my feelings) Religious sites down crying abortions ? Seems like they want those gone too. Get laughs out of UTube ? No more self produced videos (you dummy you MUST be infringing on copy rights, any way we can t check them all out so just stop it!) Getting your NEWS from NOT Main Stream Media ? Down with that only gov sanction sites can broadcast news! Enjoy personal blogs ? Down with those ! What they want is a scrubbed clean controled net with content only by professionals, it will be the equivalent of an online approved magazine !!! Back to the future all right ! 1984

  • Bob Hudson

    The plaintiff’s attorney fails to recognize that the internet is a web spun throughout the world. Copyright “infringers” are not necessarily subject to U.S. copyright or jurisdictions. Indeed, many other countries have strong laws in rejection of corporate copyright held against the stout principles of free expression. Therefore, considering that many alleged “infringers” cannot be made to answer, it could suggest that no liability is even attachable, let alone the pursuit of a substantial remedy. However, in the end, the problems faced by the content industry are likely the plain result of spreading and evolving technology – a sort of “horse and buggy” decline of the 21st century. The content industries may find futile their attempts to curtail the online activities of millions globally, through civil action, government action, or otherwise. Nevertheless, its certainly an uphill battle to sue your way out of adverse economics, but I guess for the content industries, it may be the final stand.

 

 

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