Stanford University Press Blog

Jason Mazzone, author of Copyfraud and Other Abuses of Intellectual Property Law, on SOPA

With an estimated 7,000 websites, including Wikipedia, Mozilla, Reddit and Wordpress, threatening to go dark on January 18 in protest of the Stop Online Piracy Act (SOPA) and its companion bill, PIPA, we thought now might be a good time to take a a closer look at bills heading to Congress in the new session. 

For that we turn to Jason Mazzone, renowned legal scholar and author of Copyfraud and Other Abuses of Intellectual Property, and a recent piece he wrote for TorrentFreak, which we excert in part here:

"Title I of SOPA (dubbed the E-PARASITE Act) creates a “market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property.” It achieves this by empowering copyright owners who have a “good faith belief” that they are being “harmed by the activities” of a website to send a notice to the site’s payment providers (e.g. PayPal) and Internet advertisers to end business with the allegedly offending site.

The payment providers and advertisers that receive the notice must stop transactions with the site. No judicial review is required for the notice to be sent and for the payments and advertising curtailed—only the good faith representation of the copyright owner. Damages are also not available to the site owner unless a claimant “knowingly materially” misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice.

There is also a catch: a site owner who issues a counter-notice automatically consents to being sued in U.S. courts (a strong disincentive for sites based abroad). With few checks at all, SOPA gives copyright owners a sharp tool to disrupt and shut down websites. Based on their past conduct, there is no reason to think that copyright owners will use this tool with any measure of restraint."

Jason Mazzone, author of Copyfraud and Other Abuses of Intellectual Property Law, on SOPA

With an estimated 7,000 websites, including Wikipedia, Mozilla, Reddit and Wordpress, threatening to go dark on January 18 in protest of the Stop Online Piracy Act (SOPA) and its companion bill, PIPA, we thought now might be a good time to take a a closer look at bills heading to Congress in the new session. 

For that we turn to Jason Mazzone, renowned legal scholar and author of Copyfraud and Other Abuses of Intellectual Property, and a recent piece he wrote for TorrentFreak, which we excert in part here:

"Title I of SOPA (dubbed the E-PARASITE Act) creates a “market-based system to protect U.S. customers and prevent U.S. funding of sites dedicated to theft of U.S. property.” It achieves this by empowering copyright owners who have a “good faith belief” that they are being “harmed by the activities” of a website to send a notice to the site’s payment providers (e.g. PayPal) and Internet advertisers to end business with the allegedly offending site.

The payment providers and advertisers that receive the notice must stop transactions with the site. No judicial review is required for the notice to be sent and for the payments and advertising curtailed—only the good faith representation of the copyright owner. Damages are also not available to the site owner unless a claimant “knowingly materially” misrepresented that the law covers the targeted site, a difficult legal test to meet. The owner of the site can issue a counter-notice to restore payment processing and advertising but services need not comply with the counter-notice.

There is also a catch: a site owner who issues a counter-notice automatically consents to being sued in U.S. courts (a strong disincentive for sites based abroad). With few checks at all, SOPA gives copyright owners a sharp tool to disrupt and shut down websites. Based on their past conduct, there is no reason to think that copyright owners will use this tool with any measure of restraint."

Barbara Babcock's Woman Lawyer, Author and Subject Share Avidity for Women's and Civil Rights

Just this morning, author Barbara Babcock’s interview on the newly published book Woman Lawyer: The Trials of Clara Foltz was featured as a cover story on Rorotoko.com. The book is a biographical and thematic study of Clara Shortridge Foltz, California's first woman lawyer. Foltz is remembered for her invention and championship of the idea of the public defender and her persistence even in the face of terrific prejudice and opposition to women lawyers.  Foltz aided in the long struggle for women’s rights, attending rallies, marching, and lobbying persistently. Her journey was not a struggle for women's rights only, but for the right of the poor as well. Foltz was the only person in her time to suggest that poor people deserved rights and representation just as much as people who could afford legal aid themselves.  After conducting a diligent campaign in Los Angeles, the first public defender came to existence in 1913 thanks to Foltz.

Like the great woman at the center of her story, author Barbara Babcock is also a champion of women’s rights and public defense.  Babcock was the first woman to be part of the regular faculty at Stanford Law School and she’s certainly utilized her position to further the path of women’s and civil rights. From sexual discrimination courses to civil and criminal procedure seminars, Babcock passes the championing torch of civil rights on to her students everyday.

For anyone interested in civil rights and legal reform, particularly in California’s history, Babcock's book will come as a welcome read. For a more in-depth look at the book and Babcock's own thoughts on Clara Foltz and women’s rights, look into her interview on Rorotoko. There have been a lot of rights and a lot of wrongs done on the path to civil liberties for all, and these women have committed some “rights” worth reading about.

Back to School Reading List, Part IV

This week, as the Supreme Court reconvenes after summer break, Keith Bybee’s All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law  is on our back-to-school reading list.  Bybee considers the curious state of the American judicial system and public opinion in which,  as he wrote in a recent post for the Washington Post’s ‘Political Bookworm’ blog, “we routinely pair lofty assertions of principle and impartiality with the aggressive pursuit of partial interests, calling for neutral application of the law at the same time that we demand our side win.”  (In some circles, that’s called wanting to have our cake and eat it too.)  While this apparent contradiction or hypocrisy might make one think that our judicial system is on the verge of collapse, it is in fact this very contradiction that creates a dynamic that actually underwrites enables it.
 Listen to Bybee discuss the book on WNYC's "The Brian Lehrer Show".

Who's Controlling the Genie?

Robert Plotkin, Patent Lawyer and MIT, is the author of the newly released book “Genie Inside the Machine…” The book Is really innovative in bringing technological advances to the world of patent law.

A recent article in Technology in Review summarizes the book and states Plotkin’s assessment of the future in patented technology.

Genie in the machine describes how the digital age is expanding the possibilities of human invention. He gives the example of the Oral B toothbrush as a product of software design.  But there aren’t just toothbrushes in software production; Plotkin says there are many patents already granted to other products produced in part by software.

 The problem is that the patent system that has suited our industrial society for 100’s of years is now becoming outdated and doesn’t compensate for our technological advances. The problem became apparent in the 1990’s when software produces fought for control over the market and thousands of patents were granted. Plotkin says that the patent system has to be revolutionized so that trivial patents are not granted, stifling real ingenuity.

The author  does think that this is a problem that deserves our immediate attention. With hope for the future, Robert Plotkin assures you that this groundbreaking technology will not replace human ingenuity, but rather augment it, enabling people to boost their inventive abilities to previously undreamed-of heights.  Without talented individuals to communicate effectively with computers (or rub the lamp), the genie is useless.  “One slip of the tongue and you may find yourself turned into a toad rather than bathed in riches,” he explains.

Review of Bleached Faith Outlines Church & State Debate

Caren Dubnoff, professor of political science at College of the Holy Cross, recently profiled Steven Goldberg’s Bleached Faith: The Tragic Cost When Religion Is Forced into the Public Square (2008) for Law and Politics Book Review.

In his brief volume, Steven Goldberg supports the separation of Church and State by challenging, as Dubnoff puts it, “the argument that because religion has a positive effect on moral values and civic virtue, it merits government support. He also responds to the argument that barring religion from the public square violates the free exercise rights of the religious.”

Dubnoff goes on to explain: “Goldberg builds his argument around three cases: the controversy over the posting of the Ten Commandments; the argument over the introduction of Intelligent Design in school biology classes; and the argument over holiday displays.”

This reviewer’s conclusion is that Bleached Faith is based on very current issues and provides a useful rebuttal to those leaning against the separation of Church and State.

One Blueprint for Obama

The Wall Street Journal reviewed Erwin Chemerinsky's book, Enhancing Government. John McGinnis writes, "Mr. Chemerinsky sketches a vision of federalism that would empower government at all levels and delight civil plaintiffs and criminal defense lawyers of every description. The great virtue of Mr. Chemerinsky's book is that it serves as a blueprint for the Obama administration and a fair warning to its opponents." The full text of the review can be found here.

McGinnis argues that in making a case for empowering state and local government to deal with social problems, Chemerinsky ignores the distinction between national and local consequences of the legislation.

"When Congress has gone to the trouble of establishing a regulatory apparatus, and its regulators have arrived at a judgment about the safety of a medical device, the court is right to infer that Congress does not want states simply to "opt out" of the judgment if they like."

While it is true that Chemerinsky's proposal puts limits on federal power, it empowers every level of government to deal with social problems, a point that the review fails to mention. In his view, federal power should address national problems like environmental protection and violations of civil rights, while state power can be strengthened in areas such as consumer privacy and employee protection. So the proposal reserves a place for federal action. And, Chemerinsky presumably would agree with federal legislation that seeks to put a ban on hazardous medical devices.

The book passionately argues for a different vision: federalism as empowerment. It lays a challenge to the Court—and to the next president—to approach their decisions with the aim of advancing liberty and enhancing effective governance.

A government report released earlier this week confirmed that the American economy will see a recession in 2008. Families across the country are facing foreclosure on their homes, and the dollar is at record lows.  In an article in The Chronicle Review, David Glenn asks why presidential candidates, especially Republicans, still propose tax cuts based on the now-debunked supply-side economic theory:

The hopes of the supply-side theorists of the 1970s, who proposed that revenue would often rise after tax cuts, have been thoroughly dashed by the last 30 years. Federal revenue fell after Ronald Reagan's 1981 tax cuts and again after George W. Bush's 2001 cuts. The vast majority of economists now say that tax cuts must be matched by spending cuts, or deficits will ensue.

For an answer, he turns to The Permanent Tax Revolt: How the Property Tax Transformed American Politics, released this week by Stanford University Press. Author Isaac William Martin argues that “Republican political leaders (falsely but successfully) interpreted Proposition 13's success in California in 1978 as a broad mandate for cutting income taxes as well as property taxes,” a policy that has shaped and symbolized the party every since.

Martin’s showcasing of how the Republican Party came to so deeply associate itself with tax cuts helps us understand why President Bush stands so firmly by his economic policies in the face of economic upheaval. 

The Stake of a Reputation

We all have secrets, but the ease with which information is transmitted via YouTube, MySpace, and Google has made keep them much more difficult. Lawrence Friedman’s Guarding Life’s Dark Secrets, discussed in a recent Wilson Quarterly review by Gary Alan Fine, looks at our cultures attitudes about reputation by examining when the courts have protected our secrets and when they have not.

We tend to think of those our ancestors as being better behaved than we are today, but Friedman argues that their comportment did not always match the reputation that they carefully maintained. “Friedman emphasizes that life in ­19th-­century America was rough. Heavy drinking, fighting, and con games were com­mon in public spaces.” Society, and the laws that supported it, recognized that this behavior could never be completely suppressed.

“What resulted, [Friedman] says, was the ‘Victorian compromise,’ the practice by which (most) respectable citizens were protected from being discredited by their moral lapses, except when public notice demanded otherwise. It was a culture of ‘don’t ask, don’t tell.’ For the middle class and the elite, it was a world of second chances. The working class served as society’s scapegoats. Thus, even though gambling was common at all levels of society, it was the gambling dens of the poor that were raided, not the salons of the wealthy. These miscreants, not so different from their fellow citizens, were discredited, isolated, and ­stigmatized.”

Today’s compromise has changed, as it is much more difficult to hide transgressions—instead, our public figures have perfected the art of the apology.

You can read the entire review here.

The Final Decision

This week, the Supreme Court once again revisited the question of the death penalty, this time to determine if the method used by most states, lethal injection, is cruel and unusual.

Dead Certainty by Jennifer Culbert, recently released by Stanford University Press, examines the history of Supreme Court death penalty cases, providing a solid background for understanding the debate currently taking place in the Court. Culbert focuses not on the ethical and moral issues surrounding the death penalty, but rather looks at the Supreme Court’s decisions in these cases to understand how the Justices understand judgment. She finds that the death penalty began to be questioned when the Supreme Court started looking for an external, objective truth to justify each death sentence, as opposed to trusting a jury to weigh the idiosyncrasies of each individual case.

The case currently before the Supreme Court also rests on the search for certainty when we cannot access infallible, external truth: the Court is considering whether the third and final shot in a lethal injection is sometimes unnecessarily and cruelly painful when the second renders inmates unable to signal that they are in pain.