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It's time to call off the lawyerbots

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These programs can then go one step further. You can automate the process of sending out letters to the web host to take down the offending works. Now there is no indication that that is what happened in Mr Kopp's case. However, his eBay auction generated a slew of takedown notices from various parties. As soon as he reposted the auction, it generated a new takedown notice. Human lawyers are generally not that efficient. So these autonomous agents may in fact be the ones generating these takedown notices.

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. So 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. Courts will look at whether my actions deprive you of substantial revenue. Whether I am doing it for commercial or other purposes. Whether I have copied all or a substantial portion of your copyrighted work, or only a small fraction. Whether my copy is for educational, literary, or commentary purposes. Or even whether you actually have a copyright in the work at all.

Similarly, in the area of trademark, it depends on whether you have a legitimate mark, and how far it extents. A court will also look at whether my use of your mark creates a "substantial likelihood of confusion". And whether my use of your mark in some way diminishes or disparages your famous mark. Courts take testimony, hear arguments, study law and precedent, and eventually make a ruling. As far as I know, lawyerbots don't. So the lawyerbots' emphatic sworn statement that it has a good faith basis to believe (or, more accurately that the copyright holder has such a belief based upon the lawyerbot's representation) that the work is an infringement is based principally on the fact that there is something in the posting that offends the copyright holder. In most cases, this is enough to get the stuff removed, censored and censured.

In Kopp's case, Brian finally did reach a real live human - well, a lawyer. Kopp explained that his work was clearly noted as unauthorised, used none of the copyright holder's copyrighted works, and was intended for commentary and educational purposes (and sold commercially). The lawyer insisted that the works infringed (even though you could only really use the book in conjunction with a purchased copy of Warcraft) because Brian was using their intellectual property (copyright, trademark?) for commercial purposes, and "attempting to trade off the substantial good will" in the World of Warcraft brand.

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