Fair Game: Free speech squeezed by copyrights? Scientology Fair Game

http://zdnet.com.com/2100-1106-963122.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.

...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."

...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.

...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.

...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.

...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."

...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.