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It's time to call off the lawyerbots

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Comment A recent World of Warcraft case involved a WoW book by Brian Knopp that was being sold on eBay. It resulted in automated takedown notices by "lawyerbots" and shows how the legal process today can end up silencing legitimate uses of trademarks and copyrights.

One staple idea of 1950s science fiction movies was of robots that take over the world. For example, in The Day the Earth Stood Still, a robot named Gort was poised to destroy the Earth, awaiting commands from Michael Rennie's alien, Klaatu. War of the Worlds (any version) similarly saw automated robots poised to take over the planet. But by the beginning of the 21st Century, a new threat emerged - attorneys. Now take these two and merge them, and you have a new scourge - the automated attorney. The lawyerbot.

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.

World of Warcraft lawyerbot

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 "unauthorised" 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 "unauthorised" and that there was no affiliation between the book and the copyright holder. Fair enough.

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.

Congress stepped into the fray by passing particular provisions of the DMCA. These essentially gave these hosting companies immunity from liability for copyright infringement if they followed certain procedures. A party that felt that its intellectual property rights were being infringed would have to send the hosting company a notice - under penalty of perjury - swearing that they owned a copyright to the work, that the material hosted infringed the copyright, that it was not authorised or licensed, and the that posting was causing some infringement or damage - so help me God. This takedown notice has to be in writing and signed (electronic writings and signatures are ok).

When a hosting company gets a takedown notice, they are supposed to contact (or at least attempt to contact) the poster. If the poster doesn't respond, the host must take the offending material offline, and in fact is given immunity for doing so. If the poster swears under penalty of perjury that the materials don't infringe, this then gets transmitted back to the putative copyright holder, who must respond in 14 days. If there's no response, the materials stay up. If there is a dispute about it, then we go to court. A court can issue an injunction to remove the works, or can decide to let them stay up.

The system is intended to represent a balance between the rights of copyright holders, the needs of ISPs, and the ability of people to make fair use of copyrighted materials. Several things however conspire to alter this balance in favor of copyright holders.

RoboLawyers

Many threats to companies, such as phishing attacks, spam, copyright and trademark infringement, occur with such frequency (particularly on well-known trademarks) that it is simply impractical to personally review each and every message, write a formal letter to every mail host and ISP, and then litigate the potential copyright infringement. So, many companies have automated the process of detecting and responding to potentially infringing materials. If you are the Great Amalgamated Savings and Loan Company, you might employ an automated tool to search for references to you on websites, auction sites, message boards, chat rooms, etc. The tool can then be programmed to identify (or attempt to identify) improper uses of your name, trademark, copyright, trade secret, or other intellectual property rights. All well and good. In fact, if you have valuable intellectual property, you have a duty to protect it, and to be knowledgeable about potential infringement.

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