Internal Fight Within The ABA Over Position On SOPA

Legal Issues

from the legal-food-fight dept

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.

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