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Getting your message to Congress

With IP issues front and center in Congress, attorneys need to know when their stance on a particular topic may be crossing the line into the highly regulated world of lobbying. Eileen McDermott and Patrick Ross explain.

Following a markup attended by top industry lobbyists late last year, a small but dedicated group of House Judiciary Committee members forced the sponsor of controversial legislation to put off a final committee vote on HR-3261, the Stop Online Piracy (SOPA) Act. Dozens of lobbyists were present for the markup of the bill, which lasted 12 hours. To ensure that they secured seats in the hearing room, many hired line sitters—generally unemployed local men contracted with professional firms. More than 40 line sitters stood outside the hearing room an hour before the 10:00 a.m. start of the SOPA markup, and many had arrived the night before.
Several movie studio lobbyists were among the biggest spenders on line sitters, who can cost as much as $50 per hour. This allowed three prominent industry lobbyists to sit in the front row—The Motion Picture Association of America’s Michael O’Leary, Viacom’s DeDe Lea, and News Corp’s Rick Lane—while Alec French, outside lobbyist for NBC Universal and several Hollywood unions, sat directly behind O’Leary in the second row.
Those seats proved especially useful during the first hour of the markup. The Committee clerk was forced to read aloud the entire 78-page bill as the result of a delaying tactic by the opponents, and while she did so the Hollywood lobbyists were clearly visible behind her and directly to her right.
Fred von Lohmann, Google’s copyright counsel, only managed to secure a third-row seat, but he made the most of it. As other lobbyists in the audience slumped in their seats—due to fatigue, boredom, or incessant typing on their tablets or smartphones—von Lohmann sat on the edge of his seat, ramrod-straight. He maintained this posture for hours, and his head rose up clearly above those in front of him, making the lobbyist for the company that was leading the charge against the bill visible to every Committee member.
A fact of life
This is what lobbying looks like in the United States. While SOPA and its companion, the Protect IP Act (PIPA), may ultimately have been postponed due to the widespread Internet campaign led by sites such as Wikipedia, lobbying has always played a crucial role in shaping U.S. legislative decisions. Google, for example, increased its 2011 lobbying budget to $9.68 million compared to $5.2 million in 2010, in part to challenge bills like SOPA and PIPA, which it views as detrimental to its business model.
Results like this mean that lobbying is a fact of life, and a specialized skill that is in high demand. But it can also cause problems and invite criticism for companies, since all spending and involvement in such activity is publicly available. It can raise serious issues for private practitioners as well, who may have conflicts between clients on key issues. Often, a private practitioner may merely be a member of a trade organization involved in lobbying, and be entirely unaware that the affiliation could cause ethical problems. These are some of the topics that will be debated during today’s session, titled Doing the D.C. Shuffle: How Do The Trademark Attorney, Lobbying and Ethics Mix?
Get prepared
“Many lawyers don’t realize there are special rules on lawyers acting as lobbyists,” says Brett Kappel of Arent Fox, who will be speaking on today’s panel. Kappel says, despite a slowdown on lobbying activity overall recently, “there’s been a lot of lobbying on IP issues and Internet privacy recently.” With IP ever more in the spotlight, INTA members would be well-advised to stop by to brush up on the rules.
CM51 Doing the D.C. Shuffle: How Do the Trademark Attorney, Lobbying and Ethics Mix? takes place in room 202 AB at 3:45 pm today

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