[Infowarrior] - DMCA: This Means Warcraft!

[Richard Forno]

 This Means Warcraft!
Mark Rasch,
http://www.securityfocus.com/print/columnists/396

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-looking 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. (Editor's Note: thanks to everyone to wrote in - we
are aware that the War of the Worlds robots were technically not robots
because there were actually aliens inside. This has been noted! Thus we have
changed 'automated' to 'automated-looking')

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 "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 Œnuff.

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 swearŠ"

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 authorized 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. Thus, many companies
have automated the process of detecting and responding to potentially
infringing materials. Thus, 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.



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. 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. 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 unauthorized, 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.



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 unauthorized
Œguide' 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 Œcommercial purposes.'
Your disclaimer that these guides are for Œeducational purposes only' is
ineffective. Please consider this a warning. If you continue with the
aforementioned activities, we will have not [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!"