Free speech under Net attack, study says

By Anne Broache

Story last modified Mon Dec 05 14:20:00 PST 2005


Web site owners and remix artists alike are finding free-expression rights
squelched because of ambiguities in copyright law, a recent study says.

The report (click for PDF), released Monday by a pair of free-expression
advocates at New York University Law School's Brennan Center for Justice,
argues that so-called "fair use" rights are under attack. It suggests six
major steps for change, including reducing penalties for infringement and
making a greater number of pro bono lawyers available to defend alleged fair

Fair use is a longstanding principle of copyright law. Its aim is to allow
people to copy or quote copyright works without the permission of their
authors, provided that they do so, in the words of the statute, "for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research." The law lays
out a four-pronged approach for determining--if legal challenges against the
work's use occur--whether the use was, in fact, "fair."

But beyond that, "nobody really knows what it is, because in fact there is
no precise, easy definition," said Marjorie Heins, coordinator of the
Brennan Center's Free Expression Policy Project and a co-author of the
report, which was titled, "Will Fair Use Survive?"

Research for the report, which began in late 2004, involved, among other
tasks, surveying nearly 300 stakeholders and perusing letters dispatched to
those accused of violating copyright law. In the process, Heins said she
encountered a vast amount of confusion over fair-use principles and a high
volume of what she considered irrational infringement claims.

One case described involved a man who in 1997 launched a personal Web site
at, named for the fictional planet in the first "Star Wars"
flick. Three years later, the site's owner received a cease-and-desist
letter from LucasFilm, ordering him to hand over the site. He said he never
posted any "Star Wars"-related content, but instead, such personal-site
material as family photos, poetry and fiction.

Worried that he couldn't afford a legal fight, the site's owner ultimately
reached a confidential agreement with the company, which now owns the URL
and redirects it to the official "Star Wars" site. (Ironically, "Star Wars"
creator George Lucas borrowed the name of Tatooine from a city in Tunisia
called Tataouine, located near a desert where some scenes were filmed.)

A similar "chilling effect," the report said, is taking shape through
so-called takedown notices, a tactic in which copyright and trademark owners
send letters to Internet service providers pressuring them to remove sites
the owners determined to be infringing.

Such notices are rooted in a provision of the Digital Millennium Copyright
Act of 1998 that frees ISPs and search engines from copyright infringement
liability if they "expeditiously" take down anything a copyright owner
claims to be in violation of the law. The entire process, from
letter-sending to site takedown, can occur without any formal legal

Victims of the takedown notices have recourse. They can contest the
allegations with a counternotice, but the paperwork is often complicated,
Heins said. The report recommended creating Web sites that clarify not only
appropriate fair uses but offer sample retorts to questionable takedown

Over the past few years, fair use has been a hot topic in Congress, where
politicians have voiced reluctance to make changes to the law. A few
politicians have proposed altering existing rules so that people could carry
out fair-use activities and legally pick the lock on copy-protection
technologies for, say, DVDs and audio files.

But a larger contingent has voiced concern that such a policy would open the
floodgates for piracy--a concern that has received backing from the
entertainment industry.

For example, the president of the Entertainment Software Association, which
represents the video game industry, told members of Congress at a hearing
last month that his members think "current law properly balances consumers'
diverse interests in using copyrighted works."

Heins said she finds current copyright infringement penalties "Draconian,"
but noted that the bulk of suggestions in the recent report don't even
involve direct lobbying, perhaps in part because of Congress's vocal
resistance to change.

"The more people in a community assert fair use, the more it will be
recognized and the more difficult it will be for those who want to control
every last quote or every clip used in a film," Heins said. "I think a lot
of organizing and educating need to be done, and a lot of it will be sort of

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