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

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

By WashingtonsBlog
washingtonsblog.com

Copyright Lawyers Oppose SOPA

Top constitutional law expert Lawrence Tribe opposes SOPA, as do many other con law experts.

But some 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. Anupam Chander, University of California-Davis School of Law
19. Andrew Chin, University of North Carolina School of Law
20. Ralph’D. Clifford, University of Massachusetts School of Law
21. Julie E. Cohen, Georgetown University Law Center
22. G. Marcus Cole, Stanford Law School
23. Kevin Collins, Washington University-St. Louis School of Law
24. Danielle’M. Conway, University of Hawai i Richardson School of Law
25. Dennis’S. Corgill, St. Thomas University School of Law
26. Christopher A. Cotropia, University of Richmond School of Law
27. Thomas Cotter, University of Minnesota School of Law
28. Julie Cromer Young, Thomas Jefferson School of Law
29. Ben Depoorter, Hastings College of Law University of California San Francisco
30. Eric B. Easton, University of Baltimore School of Law
31. Anthony Falzone Director, Fair Use Project Stanford Law School
32. Nita Farahany, Vanderbilt Law School
33. Thomas G. Field, Jr., University of New Hampshire School of Law
34. Sean Flynn, Washington College of Law American University
35. Brett’M. Frischmann, Cardozo Law School Yeshiva University
36. Jeanne C. Fromer, Fordham Law School
37. William’T. Gallagher, Golden Gate University School of Law
38. Laura N. Gasaway, University of North Carolina School of Law
39. Deborah Gerhardt, University of North Carolina School of Law
40. Llew Gibbons, University of Toledo College of Law
41. Eric Goldman, Santa Clara University School of Law
42. Marc Greenberg, Golden Gate University School of Law
43. James Grimmelman, New York Law School
44. Leah Chan Grinvald, St. Louis University School of Law
45. Richard Gruner, John Marshall Law School
46. Robert A. Heverly, Albany Law School Union University
47. Laura A. Heymann, Marshall-Wythe School of Law College of William & Mary
48. Herbert Hovenkamp, University of Iowa College of Law
49. Dan Hunter, New York Law School
50. David’R. Johnson, New York Law School
51. Faye E. Jones, Florida State University College of Law
52. Amy Kapczynski, University of California-Berkeley Law School
53. Dennis’S. Karjala, Arizona State University College of Law
54. Anne Klinefelter, University of North Carolina College of Law
55. Mary LaFrance, William Boyd Law School University of Nevada Las Vegas
56. Amy L. Landers, McGeorge Law School University of the Pacific
57. Mark Lemley, Stanford Law School
58. Lawrence Lessig, Harvard Law School
59. David’S. Levine, Elon University School of Law
60. Yvette Joy Liebesman, St. Louis University School of Law
61. Peter Linzer, University of Houston Law Center
62. Lydia Pallas Loren, Lewis & Clark Law School
63. Michael J. Madison, University of Pittsburgh School of Law
64. Gregory P. Magarian, Washington University-St. Louis School of Law
65. Phil Malone, Harvard Law School
66. Christian E. Mammen, Hastings College of Law University of California-San Francisco
67. Jonathan Masur, University of Chicago Law School
68. J. Thomas McCarthy, University of San Francisco School of Law
69. William McGeveran, University of Minnesota Law School
70. Stephen McJohn, Suffolk University Law School
71. Mark P. McKenna, Notre Dame Law School
72. Hiram Melendez-Juarbe, University of Puerto Rico School of Law
73. Viva Moffat, University of Denver College of Law
74. Ira Nathenson, St. Thomas University School of Law
75. Tyler’T. Ochoa, Santa Clara University School of Law
76. David’S. Olson, Boston College Law School
77. Barak Y. Orbach, University of Arizona College of Law
78. Kristen Osenga, University of Richmond School of Law
79. Frank Pasquale, Seton Hall Law School
80. Aaron Perzanowski, Wayne State University Law School
81. Malla Pollack Co-author, Callman on Trademarks, Unfair Competition, and Monopolies
82. David G. Post, Temple University School of Law
83. Connie Davis Powell, Baylor University School of Law
84. Margaret Jane Radin, University of Michigan Law School
85. Glenn Reynolds, University of Tennessee Law School
86. David A. Rice, Roger Williams University School of Law
87. Neil Richards, Washington University-St. Louis School of Law
88. Michael Risch, Villanova Law School
89. Betsy Rosenblatt, Whittier Law School
90. Matthew Sag, Loyola University-Chicago School of Law
91. Pamela Samuelson, University of California-Berkeley Law School
92. Sharon K. Sandeen, Hamline University School of Law
93. Jason’M. Schultz, UC Berkeley Law School
94. Jeremy Sheff, St. John’s University School of Law
95. Jessica Silbey, Suffolk University Law School
96. Brenda’M. Simon, Thomas Jefferson School of Law
97. David E. Sorkin, John Marshall Law School
98. Christopher Jon Sprigman, University of Virginia School of Law
99. Katherine J. Strandburg, NYU Law School
100. Madhavi Sunder, University of California-Davis School of Law
101. Rebecca Tushnet, Georgetown University Law Center
102. Deborah Tussey, Oklahoma City University School of Law
103. Barbara van Schewick, Stanford Law School
104. Eugene Volokh, UCLA School of Law
105. Sarah K. Wiant, William & Mary Law School
106. Darryl C. Wilson, Stetson University College of Law
107. Jane K. Winn, University of Washington School of Law
108. Peter K. Yu, Drake University Law School
109. Tim Zick, William & Mary Law
110. Lila Bailey, Samuelson Law, Technology and Public Policy Clinic, Berkeley Law School
111. Danah Boyd, New York University / Harvard University Berkman Center for Internet and Society
112. Christopher Wong, Institute for Information Law & Policy, New York Law School
113. Library Copyright Alliance (a consortium of three major library associations the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries)

And It Won’t Even 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 constitutional law expert 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.

For further background on the internet copyright bills, see:

View the original article at Washingtons Blog

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