Text 10528, 111 rader
Skriven 2006-04-05 14:55:42 av Rich Gauszka (1:379/45)
Ärende: First spybots and now lawyerbots
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From: "Rich Gauszka" <gauszka@hotmail.com>

the bot menace continues.  "Gort! Klaatu barada nikto!"


http://www.securityfocus.com/columnists/396

Increasingly, legal notices, threats of litigation, and other legal process are
being issued - and acted on - not by bespectacled gentlemen and women in crisp
tailored suits, but by autobots, robots trained for litigation. These
lawyerbots threaten to, like their metallic counterparts, take over the world.
They must be stopped. Come to think of it, perhaps their human (semi-human)
counterparts need to be stopped as well.

Brian Kopp lives in Bronson, Florida where he became something of a gamer on
his purchased copy of the online multiplayer video game World of Warcraft. In
fact, he became so good at the game, he achieved level sixty as a night elf
rogue (this apparently means something to gamers). He decided to share his
wisdom with others by writing a book containing hacks, cracks and cheats as
well as tips, techniques and experiences for players playing the game. While
this was an "unauthorized" book (with no permission from the Warcraft
publisher) there was no evidence that Kopp's book contained any of the
publisher's intellectual property. There were no bits of code in the book,
references to source code, and only a few screen shots of the game taken from a
third party website. In fact, the book clearly stated that it was
"unauthorized" and that there was no affiliation between the book and the
copyright holder. Fair 'nuff.

Then Brian began to sell - or more accurately to try to sell - his book on
eBay. That's where the trouble began. Shortly after the book became available
for sale, eBay began to receive probably automated "takedown" notices telling
them that Kopp's book violated the intellectual property rights of the various
copyright holders. One after another, the "lawyerbots" kept notifying eBay
about the illegality of Kopp's actions - all under penalty or perjury. "I,
ROBOT.. do solemnly swear."

Now these "takedown" notices are due to a provision of the Digital Millennium
Copyright Act. You see, ISPs and other services that host content for others
have had a legal problem. Third parties would host, post or otherwise display
content that might infringe the copyrights of others. The parties injured by
the postings would sue not only the poster, but also the ISP that was hosting
the information. Under then existing copyright law, the host was making a
"copy" in the cache of the infringing work, was doing so for commercial
purposes (they were either being paid to host content, or drive traffic, or
advertisements or whatever), and were contributing to the infringement.
Therefore, hosting companies could possibly be held liable for content under
their control unless they did something.

Chilling effect

One of the problems with these automated takedown notices is the fact that most
ISPs will send a perfunctory notice to the last email address of the poster (if
they even have that) and then just remove the putatively offending material. In
Kopp's case (PDF), under eBay's Verified Rights Owner or "VeRO" program, eBay
went even further - not only removing the allegedly infringing materials, but
also suspending Kopp's account. Thus, Kopp could not sell ANYTHING - not just
the Warcraft book. When he opened a new account, the takedown notices would
come again, and the new account would be suspended. Most people - even those
who don't infringe, or have a colorable claim of non-infringement, simply walk
away, tail between their legs. Thus, by wallpapering the net with takedown
notices, a copyright holder (or trademark holder, or person claiming any kind
of damage, breach, infringement, or improper use) can effectively remove all
kinds of content from the web. And there are few if any consequences to
guessing wrong. At worst, the alleged infringer can send a letter back and get
the content put back up. Nothing stops you then from either contesting the use
in court, or just letting cyberlawyer send you another takedown notice! You
won't hurt its feelings.

Problems with Copyright and Trademarks

One of the biggest problems with lawyerbots is their inability to think and
discern - particularly in the area of infringement. One might make the same
argument about human lawyers as well. You see, copyright or trademark
infringement isn't really binary. A work doesn't either infringe or not - there
are infinite shades of grey. A clear case of infringement might be where I copy
the entirety of your copyrighted work and sell it as you and keep the money.
Pretty black and white. But in most cases, even when I copy parts of your
copyrighted work, it may not be an infringement.

....

So the infringement seems to have been writing a book and selling it. "Danger!
Will Robinson!" Moreover, by relying on the commercial use provisions of the
EULA, effectively the lawyer is arguing that a software review published for
commercial purposes would be a "use" of the software, and therefore both a
violation of the EULA and then a copyright violation. The lawyer went on to
lecture Brian about Brian's ignorance of trademark and/or copyright law, and
suggest that Brian search the Internet for terms like "intellectual property,"
"trademark," and "copyright."

Of course, the company had no need to resort to "formal legal action." No need
to go to court. Just keep those automatic DMCA notices coming in, and
eventually eBay and others will suspend the accounts. But Kopp did one better
and sued the copyright holders and those who sent the DMCA notices. You see, it
is rare that the issuer of a takedown notice is called to prove that what he
swore under penalty of perjury is, in fact, true. So there are few consequences
to calling a non-infringing use infringing, and great benefits if you manage to
get the materials you don't like removed.

When you automate the process you end up silencing legitimate uses of
trademarks and copyrights.

As Klaatu explained about the robot Gort, "In matters of aggression, we have
given them absolute power over us. This power cannot be revoked. At the first
signs of violence, they act automatically against the aggressor. The penalty
for provoking their action is too terrible to risk."

It's time to call off the robots. "Gort! Klaatu barada nikto!"

--- BBBS/NT v4.01 Flag-5
 * Origin: Barktopia BBS Site http://HarborWebs.com:8081 (1:379/45)