01/23/2012 04:05 pm ET Updated Dec 06, 2017

Does Daily Variety Validate SOPA Fears?

It's hard to find anyone these days who will actually say "Hi! I'm for SOPA (Stop Online Piracy Act, or the Senate's PIPA). But at first, I admit, I thought it was the right thing to do. I own a small catalog of music releases, films, and some publishing interests. I would see a spike in sales if SOPA passed. Of that I am convinced.

I found the hysteria regarding what "might" happen if this bill passed to be way over the top. Until, however, while fighting a lawsuit myself against a large media company, I had an epiphany that instantly transformed me to the other side of this issue.

I am now against it. I've seen the beast' face to face. I have first hand knowledge of what the large media companies think of the Internet. They will never like it until they can control it 100%; of course ruining it in the process.

I host a weekly intellectual property themed legal advice radio show (sexy, I know) and my "flip flop" (why not call it what it is?) came while explaining to one of the callers what the lawyers for the large Dutch media company Reed Elsevier, Inc. were doing on behalf of its Daily Variety Magazine in a lawsuit filed against the rather obscure punk band The Vandals (full disclosure: I'm the bassist; more disclosure, Reed owns Lexis Nexis, who profit from any litigation, abusive as well as non-abusive.)

First filed in 2004, the case is now set for trial in Federal Court on April 3, 2012 where the Daily Variety will claim in front of a jury, presumably with a straight face, that mere "links" to a site that posted artwork from a discontinued CD displaying an "infringing parody" should result in the four members of the Vandals paying Daily Variety and their lawyers at Fulbright & Jaworski upwards of a million dollars.


One only has to observe the Plaintiff's behavior and legal theories propounded in Reed Elsevier, Inc. vs. Escalante, et al (as it is known on the Federal docket), to get a glimpse of how the media companies would transform the Internet if SOPA or PIPA ever pass close to their present form.

If the fear is that under SOPA, the media companies will take advantage of a legal anomaly that will permit them to shut down entire web sites, with the burden of proving innocence placed on the defendant, based on trumped up claims and theories, I can tell you, it's not paranoia. It is a real world certainty.

My conservative nature resisted the notion these apparent threats to the First Amendment outweighed the need to punish I.P. thieves. However, my epiphany occurred while sharing with my audience an outrageous comment made to me during a deposition in the Variety case. Variety's lawyer from the 900 member firm of Fulbright and Jaworsky accused me of having an image of the Vandals album depicting the notorious "infringing parody" of Variety's logo on the Vandals' Myspace page.

When it was pointed out to him that it was part of News Corp's mp3 retail store and outside the control of the Vandals he signaled the theory he will present at trial to squash us. "If you had no control over the image in the retail store, why didn't you shut down your entire Myspace Page immediately so that no one could see the infringing parody?"

I laughed out loud, but then realized he was serious. This evidently passes as logical in a giant law firm representing a giant media company with 30,000 plus employees. He didn't care about this country's treasured protections provided by the First Amendment for artistic speech. He didn't care about the Copyright Act's "Fair Use Doctrine" which protects punk bands' parodies as it does every parody created on Saturday Night Live or Mad Magazine. He didn't care that if he won his case, four musicians would lose their homes, and everything they'd worked for during their modest 30-year career as a band. He only cared about scorched earth litigation to get his way.

However misguided, it was fascinating to me because he was showing us our future under SOPA. In Reed v. Escalante, et al, Variety is using burdensome litigation threats to deprive artists of due process. With SOPA, the media companies don't need that threat anymore. The law would provide cover. Victims can't strike back until the damage is done. That is a powerful sword to wield and I come from the future to tell you that they will not hesitate to stab anyone in their path with it, if it means making another nickel.

And this is just over a parody. Can you imagine the lengths they will go when it's alleged piracy? It's a hideous thought.