Let’s Kill all the Lawyers

or at least take away their cell phones.

Wired News has a story about
an Internet service provider (and all of its clients) being forced offline because one client made fun of Dow Chemical. Dow’s attorneys contacted the ISP’s upstream provider, Verio, claiming that the site violated the Digital Millenium Copyright Act (DMCA). Verio couldn’t immediately find someone who could pull the offending site (it was “after business hours”), so they shut down the ISP’s entire network, affecting hundreds of other clients.

There are lots of angles to this issue. One is whether Dow’s attorneys were legally correct. Large corporate attorneys know that if you’re big enough, you don’t have to be right. Smaller fish can’t afford to fight you, even when you’re wrong. I’m personally sensitive to this issue, because I got burned in a similar case. A few years ago, I posted several parodies of MasterCard’s “priceless” commercials on a website provided by my employer. Their lawyers contacted our lawyers, and our lawyers caved.
While the principle sucked, I wasn’t extremely pissed because the parodies weren’t my own work. I had gathered them from various sources, and they were being displayed elsewhere, so I didn’t really mind removing my copies (and I already knew I was working for people with neither balls nor brains, although I was surprised when they even whined about the page I posted to explain the disappearance of the parodies).
Anybody who wants to see them can find them (and many more) on many other sites, including Attrition, who stood their ground and forced MasterCard’s legal weasels to back off since they had no case when their bluff was called.

The legal principle that corporations try to invoke here is copyright violation, since the parodies usually contain some version of the company’s copyrighted trademark. Anybody who takes time to read existing case law quickly realizes this argument is full of holes. I’m not sure whether the DMCA strengthens the corporate argument in these issues. I’ve got mixed feelings about the DMCA. It gets a lot of criticism from the “freedom” advocates on the net, and much of the criticism is probably deserved. I do support reasonable copyright enforcement which allows artists, programmers, etc., to be fairly compensated for their intellectual work. But, like most legislation that gets drawn up by corporate lobbyists, something that sounds like a noble cause frequently becomes a giveaway to big business.
I don’t know whether Dow’s legal position is actually supported by the DMCA. If so, I think the law certainly needs changing. I don’t think a law allegedly enacted to protect intellectual property should be twisted to squelch parody and criticism.

But the characters that piss me off most in this drama are Verio’s attorneys. Dow’s attorneys are certainly scum, but at least
they were doing what they were paid to do: aggressively represent their client even if they were wrong.
Verio’s attorneys, on the other hand, are taking huge gobs of money to represent their client, and doing a piss-poor job of it.
There’s enough doubt in this issue that they could have at least stalled for a while, and just like MasterCard, Dow might have backed off when they realized they had attacked someone with some balls.

At the very least, whether or not the offending site should have been shut down (and I certainly don’t think it should), there’s
absolutely no excuse for taking hundreds of other sites down just because they couldn’t find someone who could shut down the offender. This was not an emergency. It could have waited until the next business day. This illness is a common side-effect
of the rapid “improvements” in communications technology. People have become addicted to constant availability and no downtime, and panic when they can’t get an immediate response in a trivial situation. Why the hell did Dow’s attorneys even try to contact Verio’s attorneys about this outside of business hours? Why did Verio’s attorneys even answer the phone? Why didn’t they just yawn and say “OK, we’ll have somebody look into it tomorrow?” Fer cryin out loud, folks, this ain’t life or death! Take a chill pill, relax! The world’s not gonna end if you have to wait a few hours to make somebody stop teasing you. In a lot of ways, the world was much better off when communication was slower.

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