One topic of discussion this weekend at the EFF staff and board retreat was what Wendy calls the "Attack of the Subpoena-bots" -- that is, the trend toward automatic weapons-style litigation campaigns. This is when companies or industry groups like the RIAA and MPAA use key-word searches and the like to target possible infringers before firing off round after round of seemingly indiscriminate cease-and-desist letters. The problem with this is that even if the recipient is 100 percent innocent, he or she may have no idea of how to respond to the intimidating legalese/exhorbitant demands in these letters. Rather than risk doing the wrong thing, and eager to avoid the expense of an attorney, the recipient frequently decides to give up rather than to fight -- leading to the widespread chill of perfectly legitimate activities.
Fortunately for the Internet community, every once in a while a stray round hits the wrong guy -- someone not only willing but eager to fight back. Which is evidently what happened when the MPAA recently sent cease-and-desist notices to Linux Australia for providing access to two copyrighted movies: "Grind" and "Twisted." Except that what Linux Australia actually did was provide access to a download of the Twisted framework written in Python, and Valgrind, a tool for developers to locate memory management.
Needless to say, Linux Australia was not amused. And as luck would have it, the group has the legal chops and resources to do something about it:
"This seems to be a huge misuse of resources, an infringement upon various global spam laws, an infringement upon our own Copyright Act under Section 102 and needless stress and cost upon small Australian organizations and companies," [Linux Australia President Pia] Smith said.
"Linux Australia is concerned that this kind of shoot-in-the-dark approach to copyright protection is potentially damaging for Australian organizations and companies," Smith added. "Organizations that participate in such behavior should be held accountable, and forced to put at least some effort into researching the validity of their keyword searches."
Here in the states we're waiting for a ruling to come down that may provide additional protection for those inappropriately targeted by infringement claims: the decision in OPG v. Diebold
. As Wendy notes in a recent OJR article
, there's a seldom-used section of the Digital Millennium Copyright Act (DMCA
) aimed at stopping misuse: 512(f)
, which provides that anyone who knowingly misrepresents material as infringing "shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer."
[Section 512f] allows one who has been hit with a purposely abusive demand letter to reply, "Not only am I not in the wrong, but you don't have the right to say I am," says Seltzer.
What I'm wondering is what the court will require to prove that Diebold knowingly abused the DMCA to silence its critics -- and how that might compare to what it takes to prove that someone has knowingly violated copyright law.