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A quick look at Amazon.com's online bookstore identified 2,689 listings for a search for the term "Microsoft Office". In fact, in the previous sentence, I just referenced Amazon - a trademark holder - in an article published here for commercial purposes. Under this rationale, all of the "Idiot's Guides" and "Dummies" books, as well as technical journals, articles and references are infringing. Note that the lawyer didn't claim that Kopp's book disparaged the copyright holder, that it made them look bad, or injured the trademark. He never claimed that the book created any confusion about its source. No claim was made that there were copyrighted materials in the book. No claim that any sales were affected. In fact, he never even said which IP right was infringed. Just that the book was essentially "about" Warcraft, and published without permission.

The letter ominously concludes: "You are not allowed to sell an unauthorised 'guide' that attempts to trade off the substantial good will and recognition that (trademark holder) has built up in connection with its World of Warcraft product. In addition, the EULA (End User License Agreement) prohibits using the World of Warcraft software for 'commercial purposes'. Your disclaimer that these guides are for 'educational purposes only' is ineffective. Please consider this a warning. If you continue with the aforementioned activities, we will have no (sic) other alternative but to review all legal remedies available to us including taking formal legal action to protect our rights."

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!"

Copyright © 2006, SecurityFocus

This article originally appeared in Security Focus.

Mark D Rasch, J.D., is a former head of the Justice Department's computer crime unit, and now serves as senior vice president and chief security counsel at Solutionary Inc.

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