Legal protection turns service providers into speech police

Associated Press/May 4, 2002

New York -- 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.

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.''

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.

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.''