... whether you agree with the RIAA's tactics or not, at least its copyright enforcement activity is intended to protect RIAA's constituents; artists, musicians and record companies who lose money when their music is misappropriated. By contrast, the ABA’s policy of copyrighting ethics opinions -- the source of authority that govern lawyers’ conduct and inform many state bodies regulating lawyers — and locking them behind a paywall hurts lawyers and the public.

But now I realize that the problem caused by the ABA’s policy goes way beyond lawyers and affects the public.  Members of the public may not realize that lawyers can’t just outsource work to non-firm members without supervision (Ethics Opinion 08-451) or are limited in their ability to change fees in the course of representation  ABA Formal Opinion 11-458 (still online free!). Deprived of access to ethics opinions, clients may tolerate lawyers’ unethical conduct, ultimately prejudicing their case.

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.”