There is a recent call for Congress to change Section 230 of the Communications Decency Act to expand immunity to websites that allow trademark infringement to occur. This comes from the mouths of Public Citizen and Paul Alan Levy. Let's first get the law straight. Knowingly permitting trademark infringement on, or through, your website, forum, or service is usually against the law. So it is only fair, makes perfect sense, and is the long standing practice among lawyers to advise the web business of the infringement so it can act to avoid legal liability by remedying the misconduct. That's what we do at Traverse Internet Law.
But Public Citizen and the ring of "yes men" that support virtually everything Paul Alan Levy says call such a practice "bullying" and propose Congressional intervention. Since when is simply notifying someone that something illegal is occuring on a premises "bullying"? If drugs are being sold in an apartment building, is it "bullying" for neighbors to report it to the owners? Or for that matter, the police? When you see someone shoplift, is it "bullying" to tell the shop owner? How many times do we see something illegal and report it? Often. Unless you are concerned with retribution...the criminals of the neighborhood selling drugs on the corner bully the neighbors into quiet acquiescence. Now that is bullying. The "bullies" aren't the lawyers doing their job, upholding the rule of law, and supporting the growth and development of a more civil online society. As Public Citizen and Paul Alan Levy try to protect their constituents who elect to break the law, they threaten those reporting the violations with attacks. That's street justice personified. It has no place in a decent, civil society.
Yet many netizens read and follow Public Citizen's advice and guidance. Their Internet litigation group has become detached from the mission of Public Citizen...to look out for the rights of consumers. They run around the country stirring up litigation and protecting the scofflaws, miscreants, and outright illegal elements of the online world. But they do so under the "Public Citizen" banner, misleading consumers and the public. The Public Citizen lawyers threaten to attack those who oppose them not in the courts but by inciting their constituents to attack online.
Public Citizen Internet litigation lawyers and their friends criticize us online for just about everything. But every time (twice in the past months) they oppose us in Court, we clean their clocks. The absurdity of their legal arguments is surpassed only by the speed with which the Federal Judge shows them to the door. If only Public Citizen's constituents were being told the truth. A little truth serum might be called for. I can imagine in my dreams what might come out:
We are Public Citizen employees. As the Internet litigation group, we act as free outside legal counsel to some of the biggest scoundrels on the web. We don't usually win in Court, but we have a "grass roots" organization of bloggers that can attack very effectively and hurt whoever says something we don't like. We give absolute and firm advice, and make it sound like it is the law, but most of the time we aren't being honest with you. We just need controversy to stay relevant and raise money. View our advice and guidance as wishful thinking. Whatever you do, don't follow it. It will get you sued. But regardless of the meritless nature of our positions, rest assured that if anyone tries to question us we will unleash an online attack that will cause great injury to the speaker.
That meets the definition of "bullying".
This from a "consumer rights" and "free speech" group. Some may wonder how long before the Board of Directors of Public Citizen starts thinking that this is a renegade group within their organization that needs to be shown the door just as quickly as the Judges are doing.
Consumer protection? Surely you jest. Free speech? Yes, I will agree with this. The Public Citizen lawyers are all for free speech...as long as they agree with it.