Service providers as speech police?
Legal protections generate complex disputes
April 7, 2002 Posted: 9:54 AM EDT (1354 GMT)
NEW YORK (AP) -- A 1998 federal law
meant to combat digital piracy is
increasingly being used to challenge
free speech online as well.
In one recent case, the search engine
Google removed links to a Norwegian site
that criticizes the Church of Scientology
International after the organization
complained of copyright violations.
Free-speech advocates worry that the
Digital Millennium Copyright Act
effectively gives powerful copyright
holders the ability to push parodies,
criticisms and unpopular viewpoints to the
fringes or off the Internet completely.
By law, Internet services like Google have no obligation to actively monitor and
police their networks for copyright violations. But they must promptly take down
any items upon notice from a copyright holder -- or lose immunity protection from
copyright lawsuits.
"The notice and takedown provision is ripe for abuse," said Siva Vaidhyanathan, a
University of Wisconsin professor critical of modern copyright laws. "It gives the
accused no real due process."
Andreas Heldal-Lund, who runs the Scientology criticism site in question, says the
effect is to strip the Internet of its value as a democratic medium where the strong
and the meek can be equally heard.
Scientology lawyer Helena Kobrin insists the organization is trying to protect
intellectual property -- not silence critics. She said Heldal-Lund's site, "Operation
Clambake", made available substantial excerpts of copyrighted writings.
Heldal-Lund ignored repeated requests to stop, leaving the organization with no
other recourse, Kobrin said.
The organization won several copyright lawsuits in the past to stop publication of
its materials offline and online. It was a different case involving Scientology and
online postings that helped persuade Congress to give Internet service providers
immunity in the 1998 law.
"If we do not follow this framework, we risk being sued ... regardless of the merits
of such a suit," Google said in a statement.
'Fair use'
After the dispute became public, Google restored a link to the criticism site's home
page but not inner links where criticisms and excerpts appear.
Danny Sullivan, editor of Search Engine Watch online newsletter, worries that
others may get the idea that they, too, could use the DMCA law to silence critics.
Already, rival search engine Ask Jeeves
saw a jump in removal requests "from
virtually zero to getting a few" in recent
weeks, said Sharon Anolik, the site's
associate general counsel.
"It is a challenge for us to maintain our
credibility and not engage in censorship, but
to also comply" with the law, she said.
Even if silencing critics is not the intent,
free-speech proponents believe the clause has that effect because it pressures
service providers to remove materials and links without waiting for courts to
determine whether such usage is permitted as "fair use."
And because few challenges are mounted, such temporary removals tend to
become permanent.
Heldal-Lund, who considers his criticisms a permissible fair use, isn't fighting the
Google decision because he doesn't want to consent to U.S. laws as a Norwegian
citizen. Others lack the knowledge, time and money to fight.
"People who are engaging in what you might describe as parody and fair use need
to be willing to defend those rights, and that's expensive," said Stewart Baker, a
lawyer who heads Steptoe & Johnson's technology practice. "People are not always
willing to do that."
Removal notices
Supporters take that unwillingness as a sign the law works.
"If there were a large number of cases of abuse, you'd be hearing about it," said
Harris Miller, president of the Information Technology Association of America.
Most of the complaints about the 1998 copyright law have instead been over a
separate section that makes it a crime to defeat copy-protection mechanisms. That
provision has prompted free speech concerns as well, with researchers saying they
can't publicize flaws in encryption programs.
Movie studios have cited the immunity clause when targeting service providers
whose customers trade movies over file-sharing networks, while publishers have
stopped books scanned and posted online. News organizations have gone after their
articles posted on other Web sites.
Using lawsuits
Bob Kruger, vice president of enforcement at the Business Software Alliance, says
dozens of removal notices are sent daily to Web sites -- something easier and
cheaper than finding and suing thousands of individuals and companies who are
distributing pirated software.
InfoSpace Inc., which hosts Web sites,
says it has received few complaints for
shutting down accounts, while eBay Inc.
says it is rarely challenged for canceling
online auctions.
David Baker, a vice president with Internet
service provider EarthLink, says the law is
workable but not perfect, noting that
businesses occasionally abuse it by "using it
as a sword against would-be competitors."
Though most removal requests are "within the realm of reason, ... a significant
minority" misuse the provision, said Charles Kennedy, an Internet lawyer critical of
the law. The copyright holder may never intend to follow through with a lawsuit,
but decide to pressure service providers anyhow, he said.
"Why wouldn't you?" he said. "It doesn't cost you to try."
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