TCS Daily


Toxic Botsuits

By Glenn Harlan Reynolds - February 9, 2005 12:00 AM

Last week saw an amusing story of litigation gone awry. As ABC News reported:

Gertrude Walton was recently targeted by the recording industry in a lawsuit that accused her of illegally trading music over the Internet. But Walton died in December after a long illness, and according to her daughter, the 83-year-old hated computers.

 

More than a month after Walton was buried in Beckley, a group of record companies named her as the sole defendant in a federal lawsuit, claiming she made more than 700 pop, rock and rap songs available for free on the Internet under the screen name "smittenedkitten."

 

Walton's daughter, Robin Chianumba, lived with her mother for the last 17 years and said her mother objected to having a computer in the house.

 

"My mother was computer illiterate. She hated a computer," Chianumba said. "My mother wouldn't know how to turn on a computer."

 

Plenty of people have been having fun with this story -- British tech-news site The Register snarked that "Death is no obstacle to feeling the long arm of the Recording Industry Ass. of America." -- but there are some more serious issues involved.

 

Though news stories don't report what the RIAA based its decision to file suit on, the likelihood, based on past practice, is that it was a 'bot-based lawsuit. That is, computer programs led to the generation of a complaint, which was then filed without any real human investigation. I wrote on this phenomenon a while back:

 

The software, which crawls the Web the way search-engine software does, looks for files that appear to match copyrighted material: songs, movies, etc. When the 'bot finds the material, a human being is supposed to check the results, then notify the Internet service provider that a customer is infringing upon protected material and that the material must be removed. This usually leads to the ISP terminating the Internet account of the individual posting the material.

 

As I noted then -- over two years ago -- the 'bots found a lot of things that were obviously not infringements of copyright, but those led to threat letters to the ISPs anyway. Now, it seems, they're leading to lawsuits; at least, it's hard to imagine that a human being could have come up with something this dumb.

 

But regardless of what happened in Ms. Walton's case -- a question to which we can be fairly sure Ms. Walton herself is indifferent -- it seems that this sort of automated litigation is a growing trend. And that's unfair. As I wrote in my earlier column:

 

Much like the operators of rigged traffic cameras, they're relying on their own institutional power -- and the hassle of opposing them -- to let them get away with near-criminal sloppiness.

 

We need remedies for this. One, of course, is for courts to start enforcing the law. Lawyers who file complaints without taking care to verify them are subject to sanctions. Courts don't impose those very often, but based on the press accounts this seems like it might be a prime candidate for that sort of supervision. Organizations who file bogus or frivolous lawsuits based on the results of obviously flawed computer programs ought to be sanctioned. They should have to compensate the people they falsely charge for their costs, lost time, aggravation, and damage to reputation. And the lawyers involved should be subject to professional discipline.

 

"The computer did it" is a pretty inadequate excuse. Though remedies for some things -- like bogus speeding tickets from traffic cams, or complaint letters to ISPs -- may require legislative action, courts already have the power to protect people from lawsuits without sufficient basis. If, indeed, this turns out to be a bot-based lawsuit, I hope that there will be sanctions. And I certainly hope that courts -- and bar associations -- will pay attention to this sort of issue in the future.

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