IP: more on Infoworld column

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: "M. Sean Fosmire" <msf () theup com>
Reply-To: "M. Sean Fosmire" <msf () theup com>
Date: Mon, 11 Mar 2002 17:51:17 -0500
To: farber () cis upenn edu
Subject: Re: Infoworld column

The recent posting from the Infoworld column included the following:

Recent events demonstrate how the Digital Millennium Copyright Act (DMCA)
can be used by software companies to wrest control of proprietary software
from you.

Blizzard Entertainment, a popular maker of networked PC games, recently
demanded that an open-source project, bnetd, be shut down under the
provisions of the DMCA. The "crime" of the project is interesting: It
provided software that emulates the server portion of some networked games.

This allows people who legitimately purchased Blizzard software to create
private game networks with their friends. Unfortunately, because the
open-source server does not (and cannot) contain Blizzard's proprietary ID
check, it also permits people with pirated copies to use the server.

So, in the name of the anti-piracy provision of the DMCA, bnetd has been
shut down (for the moment, anyway).

--------------------

This serves as an excellent example of the confusion that reigns in this
area.  Most commentators seem unable to distinguish between (1) legal
enforcement of a company's position by means of recourse to the courts and
(2) the use of the threat of litigation calculated to pressure another to
act in compliance with that position.

A company which owns intellectual property has the right to assert any
position that it deems appropriate with regard to the proper use of that
property by another party (let's call him simply "the user").  As we have
seen innumerable times, its position may be clearly consistent with the law,
it may be clearly inconsistent, or it may fall within the grey area of
uncertainty.  That grey area is quite wide when it comes to IP, for a number
of reasons; one of those reasons is the DMCA.  But no one can deny any owner
of IP the right to assert whatever position it wishes with regard to how its
property may be used, no matter how ridiculous its position may be.

What is most often overlooked, however, is that the action of the user in
acceding to the company's demands -- to take down a web site, to stop
offering services which might be used in an improper way -- is (listen
carefully now) *entirely voluntary* in nature.

The company cannot force the user to comply with its position except by
initiating legal action with the courts and convincing the court that its
position is valid.  Any action short of that point that the user takes in
responding to the company's threats is voluntary action, done to avoid the
risk of litigation and to avoid the cost of engaging legal cousel to respond
or to defend the user in any litigation which is filed.  But that does not
mean that the user is being forced to do anything at all.  The user makes
choices about the risks that it is willing to run, or the expenses it is
willing to incur, but until the court orders that it do something, all of
its actions in response to the threat are entirely voluntary.

As an example, the following was posted on the misc.legal Usenet group in
February 1998:

      My name is Scotty J. and I run the Legalize.com Web site.  Legalize is
      devoted to helping Americans speak out for marijuana legalization.  As
a
      small part of my Web site, I had posted a parody of the Budweiser
Frogs.  My
      Bud-Is-Wiser Frogs would croak "Lee," "Gull," and "Eyes" when clicked
on
      (le-gal-ize instead of bud-wei-ser).

      Yesterday I received an e-mail from Mr. Steven M. Weinberg of Weinberg
      Sullivan P.C. whose law firm represents Anheuser-Busch Companies,
      threatening legal action if I did not remove this parody and all
references
      to "Bud-Is-Wiser" from the Legalize Web site.  Needless to say, I have
      complied with their demands.

      I feel strongly that my First Amendment rights have been violated.  My
      understanding is parody is protected under the First Amendment, even
when it
      would otherwise infringe on trademarked and copyrighted material.
Given
      that this parody is clearly political in nature, and makes a powerful
      statement that cannot be otherwise adequately expressed, I would think
that
      I have a very strong case.

      I am hoping someone can advise me on how best to proceed.  I obviously
need
      legal counsel concerning this matter; if you could recommend someone I
would
      be most appreciative.  Although I would prefer my matter to be taken
on pro
      bono, I am willing to pay for this assistance.

I posted an answer which included the following:

      First, your rights have not been violated at all.  You voluntarily
      removed the pages from the server.

      Second, you need legal advice and representation if you want to be
      able to get to the point where a judge would say that you have a right
      to post the pages.  To do so, you will have to incur the threatened
      lawsuit, unless your attorney can persuade A-B to desist from its
      threats, which is not likely.  You will have to pay for that legal
      advice and representation, unless you find a lawyer willing to donate
      his time and effort.

Too many times, the user will complain that his "rights have been violated",
when in fact the negative action that he complains of was taken by him, not
in compliance with an order of a court, but as a strategic move to avoid
liability or the threat of litigation.

Legal rights, like our own individual freedoms, are not simply given to us.
We have to fight for them.  We have to defend them against assaults from
those who would limit or curtail them in the pursuit of their own rights and
their own economic well-being.  It takes time, effort, dedication, and
perseverance to do so.  And, yes, sometimes it costs money, too.



====================================
M. Sean Fosmire      msf@theupdotcom

Garan Lucow Miller, P.C.
Marquette, Michigan
====================================



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