Thursday, April 06, 2006


Mark Rasch worries about lawyerbots.

"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.

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."

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