Over 100 Lawyers, Law Professors & Practitioners Come Out Against SOPA
from the serious-concerns dept
Supporters of SOPA keep tossing out Floyd Abrams’ name as if it’s some talisman, and that his word is final. Last I checked, Floyd Abrams is not the Supreme Court. Indeed, he’s not even one of the nine justices. Or a judge at all. And his opinion is just one — well respected — lawyer’s opinion. In fact, Abrams opinion concerning SOPA isn’t even his own unbiased opinion. His opinion was written on behalf of his clients, including the MPAA and other lobbyists in favor of SOPA. And, even then, Abrams still admitted that SOPA would lead to the suppression of protected content. Either way, there are other lawyers out there, many of whom are just as well respected as Mr. Abrams. And when over 100 such lawyers get together and speak out against SOPA, perhaps one might come to the conclusion that Abrams’ opinion on the legal aspects is one in the minority. This letter is a followup to the letter sent earlier about PROTECT IP, but noting that SOPA didn’t fix any of the problems, and actually made many of them worse:
While there are some differences between SOPA and PROTECT-?IP, nothing in SOPA makes any effort to address the serious constitutional, innovation, and foreign policy concerns that we expressed in that letter. Indeed, in many respects SOPA is even worse than PROTECT-?IP. Among other infirmities, it would:
- Redefine the standard for copyright infringement on the Internet, changing the definition of inducement in a way that would not only conflict with Supreme Court precedent but would make YouTube, Google, and numerous other web sites liable for copyright infringement.
- Allow the government to block Internet access to any web site that “facilitated” copyright or trademark infringement — a term that the Department of Justice currently interprets to require nothing more than having a link on a web page to another site that turns out to be infringing.
- Allow any private copyright or trademark owner to interfere with the ability of web sites to host advertising or charge purchases to credit cards, putting enormous obstacles in the path of electronic commerce.
Most significantly, it would do all of the above while violating our core tenets of due process. By failing to guarantee the challenged web sites notice or an opportunity to be heard in court before their sites are shut down, SOPA represents the most ill-advised and destructive intellectual property legislation in recent memory.
In sum, SOPA is a dangerous bill. It threatens the most vibrant sector of our economy — Internet commerce. It is directly at odds with the United States’ foreign policy of Internet openness, a fact that repressive regimes will seize upon to justify their censorship of the Internet. And it violates the First Amendment.
But… but… Floyd Abrams!
Filed Under: copyright, due process, first amendment, lawyers, pipa, professors, scholars, sopa
Comments on “Over 100 Lawyers, Law Professors & Practitioners Come Out Against SOPA”
The rules would have been the same before DMCA, possibly worse. I would guess these lawyers have a lot of web 2.0 clients who will all have to actually come up with a business model that doesn’t involve mass infringement in safe harbor mode. Me thinks they realize they are fucked solid.
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“Album sales, including digital downloads, CDs, vinyl and cassettes, are up 3% this year compared to the year before.”
http://consumerist.com/2011/11/citigroup-gets-out-of-the-music-business.html
“In advance of Wednesday’s House Judiciary Committee hearing on the Stop Online Piracy Act, a coalition of national consumer groups has reached out to the committee to urge them to stop this legislation, which they believe is too far-reaching and could end up hurting the consumers it intends to protect.”
http://consumerist.com/2011/11/consumer-groups-the-stop-online-piracy-act-goes-too-far.html
SOPA won’t be abused
“It is bullying, Barnes & Noble seems to be saying, in that Microsoft is asking for rates comparable to what it would charge for an entire operating system, claiming credit for Android, but when you look at the patents, they are for things that are utterly trivial or, in some cases — a patent that only comes into play on dial-up connections, which obviously the Nook doesn’t need — for functionality Barnes & Noble products don’t use or need.”
http://www.groklaw.net/article.php?story=2011111122291296
When has the system ever been abused?
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‘actually come up with a business model that doesn’t involve mass infringement in safe harbor mode”
Question: How many times do you have to repeat the same lie before you start to actually believe it?
A SOPA Thought Experiment
So, here’s an interesting little concept: software is subject to copyright restrictions. Dell, Microsoft, Nokia, HTC, Apple, etc all offer software for download.
Some of that software may infringe copyrights.
So doesn’t SOPA mean that any app store could be shut down over a single piece of allegedly copyright infringing software? A hardware manufacturer’s ability to accept direct purchases blocked to accusations of copyright violations in their firmware or one of their drivers?
Enough Already!
Just how much credibility does the RIAA/MPAA have that congress would take their word over absolutely everybody else’s when it comes to SOPA?
Enough Already!
they don’t have any credibility at all…
what they do have is truck-loads of cash…
Enough Already!
You assume that Congress works for all the people.
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Why don’t you try working instead of whining about how hard the big bad world is?
An overweight pencil pusher from and industry famous for criminal behaviour cannot be serious.
Enough Already!
100 tech lawyers and freetard professors isn’t “everybody else” lol
Nice job Mike “Infringement is king” Mike. Your fifth SOPA article in the past day.
These companies need to wake up and realize that the internet as they know it is coming to an end. The future is soon. These companies can no longer take it in the rear while getting a reach around from Google’s “Adsensual”. All we can expect now is the golden dream to come true. A warm yellow stream, splashing all over our chests from our elected officials. Keeping the internet firmly under control, and when that firm can’t control it any longer. It will lash out, white hatred spewing all over techdirt.
Much like mike’s very own words, and I quote.
a flaccid defense, not considering the tight safe harbor laws. The same moneyshot laws which give pirates tight, warm holes to enter.
Safe Harbor
Saying Safe Harbor web sites are willful copyright infringers is like saying that Home Depot willfully injures people’s foots because they sell nails that people step on.
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Are you a parody troll? ‘Cause that was hilarious!
Well, all these people speaking out against SOPA would certainly change the mind of any competent politician. After hearing that there was more than one side to the argument, they’d carefully research the issue, mull over all the facts, and then make an informed and well-reasoned decision. And if they were in error before, they’d publicly admit their mistake and do the right thing as public servants.
That’s how a republic’s supposed to work, y’know.
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There’s no lie there; it’s called reality. These “businesses” need to adapt and stop relying on a bad business model.
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Hint: The businesses trying to buy new laws for themselves are the ones with bad business models.
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Yup, likely a dead cat bounce.
Could also be the effects seen in Sweden and other places as piracy has been slammed pretty hard.
You know, I looked at 100 lawyers, and all I could think of was the old maxim:
Those who can do, those who can’t teach.
Let’s just say it would be more interesting to see the opinions of practising lawyers, perhaps ones who have fought actual cases, rather than the theoretical scholars.
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It’s kind of what I do, I only accept statements and comments from people that I know are not liberals.
It works out great, because if anyone disagrees with me, they’re probably a liberal. And I can ignore them. I seem to be surrounded by liberals all the time, but it doesn’t matter, because I’m hearing exactly what needs to be heard and filthy liberals and their marxist comments don’t penetrate the thick wall of my skull. Why can’t you do the same Pirate Masnick?
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They will adapt, they all going to oversea lands.
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These “businesses” need to adapt and stop relying on a bad business model
Hey, you can’t just say ‘you need to adapt’ without explaining how to do that! :p
BTW, you are speaking about technology companies that have done nothing but adapt. And those that don’t? They shrivel up and die. Even big ones.
And the media companies? They are still trying to shove shiny plastic discs down my throat, and can’t comprehend why I’m not thrilled to be buying them. Must be the pirates fault! Pass some laws! Quick! It certainly can’t be that physical media is dying. And the sooner the better.
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It’s so hard to tell, isn’t it? When you can’t tell if a troll is a parody or not what does that say about the earnest trolls?
But/how/can I recoup/the/”sunk”/costs of my $100 million/movie? Tell/me/that/M/i/k/e?
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It means this guy is freetarding on those other trolls hard and earnest work.
He’s a Freetard Troll, just can’t come up with his own unique trolling methods he has to use the hard earned methods of other more famous trolls.
He’s taking money out of the mouths of the children of honest working Shrills
Lets all Think of the children and remove these trolls
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Your keyboard has a slight problem with the slant key.
Oh wait that’s you sorry … carry on being a tool
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Ooops.. I thought you were Out_of_the_blue.
+1000 Trolling points to you
Role of Government
Dear Government,
Crunchyroll is a competitive alternative to pirating anime.
Netflix is a competitive alternative to pirating movies.
iTunes is a competitive alternative to pirating music.
SOPA is not needed. Your job is not to pick and choose the winners and losers of the what is supposed to be a free market. SOPA is not going to magically cause pirates to start buying CDs, DVDs and other traditional media.
Please stop making everything worse by prolonging the inevitable failure of industries with fake scarcity business models.
Sincerely,
A Concerned Citizen
The title to this article is misleading. This is simply a restatement of the earlier letter (as you note) signed by various law professors in response to the Senate’s Protect-IP bill. It is not signed by the diverse group the title suggests.
By the way, it was written by three, with the rest signing on to ride their coat tails. This is not at all unusual in the world of academia.
The far more pressing question is whether or not the letter presents a compelling case against either of the bills (Protect-IP and SOPA). The crux of their argument rests upon the First Amendment, which all persons (yes, even those who support the bills) agree is an important consideration. Thus, I was quite surprised, even at this late date, that they continue to promote a “vision” of the First Amendment with virtually no substantive analysis of existing case law.
Mr. Abrams has presented his arguments with a very thoughtful analysis of case law. Perhaps if the professors followed his lead they might be able to engage and traverse his analysis. For reasons that completely elude me, they have chosen not to do so. As a consequence I daresay that their letter will receive a tepid welcome at best.
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Parody Troll FTW!
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“Mr. Abrams has presented his arguments with a very thoughtful analysis of case law.“
ROFLMAO! Good Joke! … Oh wait you were serious?
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Try again.
Consumer spending on everything was up slightly compared to last year. Even though wages are flat, people have been dipping into savings to start spending again.
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You’re talking about the recording industry, right?
They’re the ones that have been whining about internet piracy for the last decade. Before that it was home taping, radio piracy, or phonographs.
As to criminal behavior? Where to begin? Drugs? Payola? Intimidating artists over contracts? Shady or outright illegal accounting practices? Those are all well documented over the last 40 years – longer than the modern tech industry has even existed.
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Yes, I am serious, and precisely for the reasons stated. Whether you agree or disagree with Mr. Abrams, it cannot be denied he has taken the time to actually craft a legal opinion. In contrast, the professors have made no such attempt, which is quite surprising (if not shocking).
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shiny plastic discs? lol
try itunes.com
you clowns are losing it.
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“Nice job Mike “Infringement is king” Mike. Your fifth SOPA article in the past day. “
Thats because the vote for this law is coming up soon, you dumb shit. The closer the vote, the more activity about it. Even a dumb shilltard like you should understand that, since you lobby harder and harder for laws like this and keep increasing the pressure as the vote gets closer.
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fifth? Masnick had 11 SOPA articles recycling the same FUD on his blog Tuesday. *ELEVEN*. He did that because tomorrow there is debate on SOPA in DC and Masnick is getting desperate; his precious, beloved piracy is never going to be the same, and he is freaking out.
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Um. Yeah. iTunes.com …
Seriously? AAC audio that works on 2/5 *mp3* players in my house and DRM poisoned video that works on none of my TV’s. Yeah, baby! Give me more of *that* kool-aid!
Role of Government
“iTunes is a competitive alternative to pirating music.”
Just not true. Itunes isn’t making a dent in piracy, otherwise music sales would be way up… hint: 58% off in 10 years.
Anything that you have to pay for is unlikely to compete with piracy in the long term.
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ok Amazon.
Your bullshit is transparent to everyone.
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He did that because tomorrow there is debate on SOPA in DC and Masnick is getting desperate; his precious, beloved piracy is never going to be the same, and he is freaking out.
No, I did that because tomorrow there is a debate on SOPA in DC and I am getting desperate; my precious, beloved internet is never going to be the same, and I am concerned.
FTFY.
Seriously. This is a big deal. And it has nothing to do with piracy. Since I don’t pirate, and pay for all my music and movies, the “piracy” part is meaningless to me. What does concern me is how this will hurt tons of important and useful innovations — including many that you should rely on if you want to succeed going forward.
You’re fighting for a bill that, if it passes, will only hasten your own demise. It’s really quite astounding.
I’m fighting to make sure that the services you need to help make money in the future can be built. Why would you fight against that.
Role of Government
What statistic are you following?
Music sales up 7%
$6.3 BILLION dollars is not chump change. Yet the music industry is competing against the movie and the gaming industry for the larger amounts. With all the money being made, what the hell do you have to bitch about?
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You are completely full of shit.
The *vast* majority of articles on this blog are complaints about law enforcement actions or government legislation against piracy.
You are a true sociopath to think everyone doesn’t see that.
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iTunes sells movies and TV shows now?
Or are you so out of date that you think that plastic discs are only for music?
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And yes, I’m aware iTunes hasn’t been solely a music platform for a long time.
But only an idiot or a troll pretends that the shiny disc market is still being shoved down our throats.
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Every shill you mean. Of course they are paid to do so.
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Appeal to authority. Gotta love those.
Role of Government
1 download = 1 lost sale.
Could you be more ridiculous?
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I do agree with Abrams’ analysis: SOPA would lead to the suppression of protected content.
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The true sociopaths are the people willing to derail the progress of humanity just go get to the next quarterly bonus level.
You are just a simple tool of those sociopaths.
If rampant piracy is the price for progress, freedom of speech and the free flow of information, then so be it.
And don’t kid yourself. SOPA or not, piracy is not going away. You might as well fight gravity – the result will be the same. You’ll end up red faced, sweating and dizzy, your fists clenched in impotent rage, having changed absolutely nothing.
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No one is hiding behind safe harbors, if there is infringement going on then IP holders do have legal ways to confront the infringement.
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(but at least this is an admission that the purpose of this new bill is to reduce/remove the DMCA safe harbors).
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Hey, give him some credit. The / is perhaps the most important aspect of his argument.
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I don’t work for a corporation.
No one ever said piracy was going to disappear. But the piracy environment you’ve known for many years is quickly coming to an end.
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“No one ever said piracy was going to disappear. But the piracy environment you’ve known for many years is quickly coming to an end.”
Actually, the piracy environment was sort of fading, with the nice legal alternatives that were blossoming.
Good thing we have SOPA and the general troglodytism of the MAFIAA to crush any such newfangled ideas, right? Plastic discs, thats where the money is. I’m sure of it.
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DVD and blu-Ray beg to differ.
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What, out in the open?
Look what that did to the cannabis market: it made it Black overnight, and took money out of the economy (through not being declared for tax purposes) and put it into crminals’ hands.
All SOPA is going to do is take more money out of the US economy and put it into actual criminals hands.
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By the way, it was written by three, with the rest signing on to ride their coat tails. This is not at all unusual in the world of academia.
Oh, sort of like how Creative America’s letter in support of SOPA was written by some content industry PR flack, with 30,000 supporters riding on its coattails (and taking advantage of some mathematical extrapolation along the way)? This is not at all unusual in the world of legacy industries and various trade unions.
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You forgot their “creative accounting”.
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Nevermind, you didn’t.
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I have said this before, I hope these people get everything they are asking for in SOPA. The reasons are simple …
– Everything in this law will eventually be ruled
unconstitutional.
– The tech companies will wake up and begin pushing back, that will more than likely include huge lobbying budgets, and buying up the media companies.
– In the end it will rush the demise of the old industry and allow a new industry to form, nature and business abhor a vacuum.
Yes of course it will be a couple years of pain, but in the end it will be for the best.
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The article pertained to a single letter, and my comments were directed specifically to that letter since it was the only subject of the article.
Role of Government
I just made $500 selling lemonade.
But thousands of people are making home lemonade, costing me millions.
So obviously, my sales are down 99999%.
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So you are saying that we should completely ignore all the lawyers who signed on stating they agree with the letter and that it reflects their thoughts and reasoning behind their opposition, just because they didn’t write the letter themselves?
Ok. Then I completely dismiss Abrams letter because it was written by the MPAA/RIAA with his name just tagged on it to ride the coattails.
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I am at all saying that. Mine are but two points.
1. The number of law professors who “sign on” to a letter does not automatically translate into all of them agreeing with every point made. “Coat tail” riding in academia is ubiquitous, especially when it can be added to one’s CV.
2. The letter authored by the three named individuals bears no relationship to what would otherwise be a professional legal opinion. I urge you to read the letter again, only this time look at each of its three sections and ask yourself if they are presenting substantive or conclusory arguments.
Their First Amendment “analysis” is devoid of substance and the scholarship they each profess to pursue.
The DNS “analysis” is completely outside their area of expertise. They rely entirely on a quote from another author, and provide no insight into how this fits within the law. It would have been better had they simply omitted this portion since it comes across as little more than arm waving.
The remainder of their letter, and the one they argue most strenuously, is one of policy. Distilled to its essence, what it really says it that “This diminishes our standing in the world as the beacon of free expression. Other countries that have repressive regimes will use it to validate their truncating expression they do not approve of.” Of course, it bears mentioning that the bills before Congress are content neutral, and focus only on matters material to the enforcement of copyright law. It also bears mentioning that a long history of judicial precedent recognizes and affirms that copyright law has been balanced to incorporate legitimate First Amendment concerns.
From the perspective of a lawyer, their letter would have carried far more persuasive force had they addressed and dissected the points presented in Mr. Abrams’ letter. Why they elected to do otherwise makes no sense to me.
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I am at all saying that. Mine are but two points.
1. The number of law professors who “sign on” to a letter does not automatically translate into all of them agreeing with every point made. “Coat tail” riding in academia is ubiquitous, especially when it can be added to one’s CV.
2. The letter authored by the three named individuals bears no relationship to what would otherwise be a professional legal opinion. I urge you to read the letter again, only this time look at each of its three sections and ask yourself if they are presenting substantive or conclusory arguments.
Their First Amendment “analysis” is devoid of substance and the scholarship they each profess to pursue.
The DNS “analysis” is completely outside their area of expertise. They rely entirely on a quote from another author, and provide no insight into how this fits within the law. It would have been better had they simply omitted this portion since it comes across as little more than arm waving.
The remainder of their letter, and the one they argue most strenuously, is one of policy. Distilled to its essence, what it really says it that “This diminishes our standing in the world as the beacon of free expression. Other countries that have repressive regimes will use it to validate their truncating expression they do not approve of.” Of course, it bears mentioning that the bills before Congress are content neutral, and focus only on matters material to the enforcement of copyright law. It also bears mentioning that a long history of judicial precedent recognizes and affirms that copyright law has been balanced to incorporate legitimate First Amendment concerns.
From the perspective of a lawyer, their letter would have carried far more persuasive force had they addressed and dissected the points presented in Mr. Abrams’ letter. Why they elected to do otherwise makes no sense to me.
101
You can add one more to your total. I’m a lawyer and I’m against SOPA.
The majority are against SOPA.