[DMCA-Activists] Free Speech Squeezed by Copyrights?

[Seth Johnson]

-------- Original Message --------
Date: Thu, 24 Oct 2002 12:31:03 -0400
From: Vin <address@hidden>


> http://zdnet.com.com/2102-1106-963122.html

Free speech squeezed by copyrights?

By Lisa M. Bowman 
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.