Free speech feels Net copyright chill

Free speech advocates say intellectual property owners are more aggressively pursuing both small Web sites and Internet service providers in hopes of getting pages or material removed.

6 min read
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.