MESSAGE
| DATE | 2002-10-24 |
| FROM | Vin
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| SUBJECT | Subject: [hangout] Free speech squeezed by copyrights?
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http://zdnet.com.com/2102-1106-963122.html
Free speech squeezed by copyrights?
By Lisa M. Bowman
Special to ZDNet News
October 24, 2002, 4:00 AM PT
Rick Sanchez thought the bright folks at Mensa International would agree
that his Pets or Food Web site was a joke.
He was sure that the site's offers of "freshly clubbed" frozen baby seal
meat and "a dozen Doberman flank steaks for a Super Bowl party" were a dead
giveaway. If not, then surely the site's frisky description of fictional CEO
Sydney Zwibel--a "former animal disposal technician," Mensa member and
alternate member of the 1984 Olympic Fencing Team--smacked of parody.
So he was astonished to get a letter from Mensa this summer, addressed not
to him but to his imaginary character, saying Zwibel's use of the group's
trademark without permission could result in "civil and criminal penalties."
"I was pretty stunned actually that Mensa, which is supposed to be a group
of smart people, would send me this letter," Sanchez said. "Obviously, Sydney
didn't exist in their rolls. He didn't exist." Web publishers have long been
targets of zealous copyright and trademark holders, but free speech advocates
say intellectual property owners these days are more aggressively training
their legal guns on both small one-man-band Web sites and the Internet
service providers (ISPs) that host or link to them, hoping to get pages or
material removed.
In recent years, intellectual property holders have expanded their efforts
to deep linking and metatags. Now they're pursuing search services,
pay-for-play sites and Web libraries. Last month, the Church of Scientology
sent a letter to the Internet Archive, persuading the site to pull down
archived pages that were critical of the church's beliefs.
Copyright holders also have gained additional ammunition to demand removal
of material. The 1998 Digital Millennium Copyright Act (DMCA)--designed to
update copyright laws in the digital age and assuage piracy fears--carved out
protections for ISPs that remove alleged violations when asked, but didn't
require them to notify the site operator or to judge whether the claim is
legitimate. The ISPs sought the protections so they wouldn't be liable for
policing their system.
Although the process protects ISPs, it means many sites just mysteriously
disappear without any determination of whether the pages actually violate
copyrights. Free speech advocates also fear that many companies and
organizations are trying to shoehorn their trademark claims into DMCA claims
in the hopes of persuading ISPs to quickly take down the sites.
"We're seeing a trend toward more aggressive protection of (intellectual
property) rights," David Schnapf, an attorney with Coudert Brothers, said.
"Perhaps the forces that are there to protect fair use rights or
dissemination of information currently aren't as aggressive or strong to
bring a greater balance to the Web."
No choice?
Those sending the letters say they're only trying to protect their rights
amid the untamed and untested legal waters of the Web.
"The Internet offers new and different threats to our corporate identities
and our individual identities," said Jim Blackmore, national marketing
director of Mensa International.
The group doesn't have a problem with fictional characters claiming
membership in the organization--both Lisa Simpson and the blue Power Ranger
are approved Mensa members, Blackmore said. Mensa went after the Pets or Food
site because the group pursues those who defame or abuse its trademark, he
said.
"We did not want to be associated with this man's ravings," Blackmore said.
They may have to put up with them just the same. After consulting his
attorney, Sanchez decided to keep up the site--Mensa mention and all.
Free speech advocates are hoping that Web operators across the globe will
take a page from Sanchez and refuse to back down in these copyright
situations, even in the face of ever more forceful pressure.
To counter the trend toward more aggressive enforcement, free speech
advocates are trying to publicize the claims in the hopes that people will
question them.
When Sanchez received Mensa's letter, he forwarded it to the
Chillingeffects.org site. Launched in February by the Electronic Freedom
Foundation and legal clinics at several prominent law schools, the site
provides a clearinghouse where people can forward cease-and-desist letters
and learn more about copyright and trademark law.
Its backers hope that posting letters like Sanchez's will embolden others to
stand up for their free speech rights instead of immediately pulling their
material in the face of a frightening legal threat that may not hold up in
court. The letters are annotated by law school students who translate the
legalese into plain English and remove personal information.
Chillingeffects founder Wendy Seltzer said the project grew out of the sense
that many legitimate sites were being shut down by legal threats. People who
don't have legal training or lots of money often back down when they receive
threatening letters from lawyers, she said. She hopes Chillingeffects, at the
very least, will inspire people to analyze such letters to see if they're
legally viable rather than just pulling content.
A chilling effect?
"We want to help people understand their legal rights," Seltzer said.
The legal clinics also plan to gather and analyze data from the letters to
see if companies are overstepping their rights and trying to frighten people
out of posting critical or negative material.
"Certainly, what we've seen so far has borne out our concerns," said
Jennifer Urban, a fellow at the University of California at Berkeley's Boalt
Hall School of Law who works on the Chillingeffects.org project. "Some sites
that shouldn't come down are coming down. That could have serious
implications for the Internet."
The law school clinics hosted by schools such as Harvard University,
Stanford University and U.C. Berkeley, plan to examine the various legal
arguments--perhaps as fodder for challenging new digital copyright laws that
some say go to far.
One of the cease-and-desist recipients could eventually provide a test case
to challenge some of the new laws, or the Chillingeffects organizers could
present the data directly to lawmakers.
The site even has a deal with Google, which forwards all of its DMCA
cease-and-desist letters to Chillingeffects for public posting.
Chillingeffects organizers praise Google for bucking the trend of removing
Web pages without a trace. In addition to forwarding the letters, Google also
notifies customers when they've received a letter about their sites.
"We wanted to make the process more transparent," said Kulpreet Rana,
Google's director of legal affairs. "Our purpose is to help people find
information."
If a page has been taken down, Google displays a notice at the bottom of its
search page, saying it has been removed in response to a complaint from a
copyright holder
Rana said some of the disputed pages clearly violate copyright laws, but
most fall into a gray area. The effects of the partnership are still unclear,
however. Google hasn't noticed an increase or decrease in the number of
letters it's received since the company began posting the letters eight
months ago, Rana said.
No measurable effect
Overall, the efforts of Chillingeffects and others to make such letters
public doesn't seem to be tempering the habits of those who send them, say
intellectual property attorneys.
"There's not enough visibility," said Schnapf, the Coudert Brothers
attorney. "For every letter that shows up, there are 100 letters that don't.
It's not an important part of the equation."
What's more, tech-savvy attorneys have been writing letters for years as if
they would show up on the Web eventually.
"Chillingeffects is simply accelerating an already existing trend to be
careful about what you write and to assume whatever you write is likely to
show up on the Web somewhere," said Mark Radcliffe, an intellectual property
attorney at Gray Cary Ware & Freidenrich. "It can be very embarrassing if
you're too aggressive."
Indeed, some intellectual property owners have found that out the hard way.
Warner Bros. incurred the wrath of Harry Potter lovers worldwide when it
sent a letter to Claire Field, the 15-year-old owner of a Harry Potter fan
site, ordering her to take the site down because it allegedly infringed the
company's intellectual property rights.
Field made the claims public, and supporters rallied around her. The company
eventually reversed its position and allowed Field to keep the site as long
as she didn't try to make money off it.
In another case, Sony was attacked for pursuing a fan of its Aibo robotic
dog. The fan set up a site showing people how to tinker with the dog so it
would dance. Sony eventually called off its lawyers under protest from Aibo
fans, who read about the dispute on Web sites.
Meanwhile, Sanchez plans to keep up his Pets or Food fight, inspired in part
by others who've stuck to their guns. If he doesn't come out on top of legal
battles, he has another plan: Sanchez is in the process of taking the Mensa
test, so the group can't dispute claims he's a member.
"I want to get in," he said.
____________________________
New Yorker Free Software Users Scene
Fair Use -
because it's either fair use or useless....
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