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The American Bar Association’s intellectual property section has stirred up a ruckus with its attempt to get the bar group to file an amicus brief backing the constitutionality of a law that added 20 years to the length of copyrights. The U.S. Supreme Court recently agreed to review Eldred v. Ashcroft, which challenges Congress’ right to enact the legislation. And members of the ABA’s intellectual property section wanted to weigh in as supporters of the law. That move set off a flood of e-mails, letters and faxes from attorneys who say the ABA has no business issuing a position on the matter. The group’s Board of Governors voted in April against a resolution that would have allowed submission of the brief. The showdown over the amicus brief represents the growing divide between the two sides of the IP bar. On one side are those who favor strong protection of intellectual property rights. On the other are those who say IP owners are unjustly trying to extend their rights at the expense of the public. In a bulletin sent to members of the ABA’s IP section, Charles Baker, who chairs the section, emphasized the importance of the Eldred dispute to IP holders. Quoting the past section chair, he wrote that the case “could present a field day for those who have an anti-IP sentiment — those who say information wants to be free, less protection is necessarily better … and when technology advances, IP rights must be cut back.” Other attorneys clearly have a different view of the issue. And such disagreement should preclude the ABA from taking a stand on the matter, according to several lawyers and law professors. “We’re happy to have as many briefs on either side,” says Stanford Law School professor Lawrence Lessig, who represents Eric Eldred, the Web site operator challenging the copyright law. But he says the case “raises a fundamental question of constitutional balance and to ask the ABA to take a position representing all lawyers was extraordinary.” Lessig contends that the law violates the constitutional requirement that copyright be secured for “limited times.” Prior to the legislation, the length of a copyright was the life of the author plus 50 years, or, in the case of corporate works, 75 years. The new law added 20 years to copyrights. The D.C. Circuit U.S. Court of Appeals ruled 2-1 last year that Congress had acted within the bounds of the Constitution in passing the law. ABA General Counsel Darryl DePriest says the board decided the association’s policymaking House of Delegates should determine the ABA’s position on the issue. But since briefs in the Eldred case were due before delegates were to meet, the IP section asked the board to review the issue. “We normally only file a brief where there has been a clear expression of policy by the House of Delegates,” says DePriest. “Given the lack of unanimity in the bar, it made it especially difficult for the board to step in place of the House of Delegates and make policy.” Baker, a partner at New York’s Fitzpatrick, Cella, Harper & Scinto, plays down the disagreement within the IP bar. Claiming that a “vocal minority” supports Eldred’s position, Baker says, “Most IP attorneys think what Congress did was right.” The uproar within the ABA began when consumer activist James Love, who opposes the copyright extension, posted notices on IP and antitrust-related Internet bulletin boards that the bar group was about to vote on whether to file a brief. “There was quite a bit of shock that the ABA would weigh in favor of it,” says Love, director of the Consumer Project on Technology, which was started by Ralph Nader and is in Washington, D.C. “How could you argue that 75 years of copyright term wasn’t long enough?” Love contends that ABA members pushing for the brief come from firms that represent Walt Disney Co. and other interests who favor longer copyrights. “The IP section does have a pro-IP bent within reason,” says Baker. “But I don’t apologize for that because the Constitution has a pro-IP bent as well.” Mark Lemley, a copyright expert at Boalt Hall School of Law in Berkeley, California, says there is nothing wrong with lawyers advocating the interests of their clients. Still, he says, it would be misleading for the ABA to make an endorsement implying that all lawyers support the law. “The ABA quite properly decided this wasn’t an issue where there was substantial agreement so it shouldn’t intervene,” says Lemley.

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