Transcript Legal Threats, Chilling Effects, and Warming the Air Wendy Seltzer Fellow, Berkman Center for Internet & Society Visiting Professor, Northeastern University School of Law [email protected] http://www.chillingeffects.org/

Legal Threats, Chilling Effects,
and Warming the Air
Wendy Seltzer
Fellow, Berkman Center for Internet & Society
Visiting Professor, Northeastern University
School of Law
[email protected]
http://www.chillingeffects.org/
In brief:
• Chilling Effects and legal threats to online
expression
• Threats warranted and unwarranted
• The “Streisand Effect”: tactics for fighting
back
• The recording industry’s litigation dragnet
• Challenges for educators
• Procedural problems
• Common Threads
• Conclusion
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Tracking the shadow of the law
• Most disputes regarding online speech are
not decided in court; most don’t even get
to the courthouse
• Particularly in the intellectual property
context, cease-and-desist letters silence
online speech by invoking the law –
whether with or without justification
• ChillingEffects.org aims to distinguish the
two by helping people understand their
rights and the law
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Thousands of Cease-and-Desist
Demands Sent Annually
• Many of those are sent to Chilling Effects
• Some properly target unlawful activity
• Others are politely phrased requests
• But many mis-state the law, erroneously
threatening legal action
• Mistake or misinterpretation of the law
• Intentional fudging of the law or pushing its
boundaries
• Malice or bullying
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People Are Silenced Even by
Improper C&Ds
• Some don’t know their rights
• Some don’t have the resources to fight;
litigation is expensive
• Some are risk-averse
• Some don’t share incentives between the
poster and host of the content
• Digital Millennium Copyright Act takedowns
are sent to Internet service providers, not to
their individual subscribers or users
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Aibo goes to law school to learn to read EULAs
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Increasingly Often,
Recipients Fight Back
• Lawyers are accustomed to working with
statutes and legal precedent, but most
C&D situations don’t get to court
• Some recipients take down
• Some send nastygrams of their own in
response
• Some recruit online allies to help in their
defense
• Some ignore the C&D
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The “Streisand Effect”
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Diebold
•# To: <[email protected]>
•# Subject: RE: GEMS Versions
•# From: "Ken Clark" <[email protected]>
•# Date: Mon, 5 Jun 2000 18:00:49 -0500
•…Testing releases go out to customers when they
shouldn't, and new features get added to stable
branches when they shouldn't. It is not entirely
undisciplined either though. Obviously you need
to keep an eye on the support and bugtrack lists.
Sometimes a bug slips into a stable branch, in
which case its better to ship a version you trust,
or wait for it to get corrected.
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• Diebold sent
cease-and-desists
to individual
posters and to
their ISPs,
invoking the
Digital Millennium
Copyright Act
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DMCA Section 512 Safe Harbor
• Limits ISP liability for user infringements
• (a): Transitory Digital Network
Communications
(connectivity providers, including universities)
• (b): System Caching (ISPs or services like Akamai)
• (c): Information Residing on Systems or
Networks At Direction of Users (web and file
hosts)
• (d): Information Location Tools (search engines)
• Available if ISPs follow certain procedures, which
vary depending on their roles
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The first of several
pages of listings
from why-war.com:
After Diebold
threatened the first
sites, more than 60
additional websites
posted the
contested email
archive.
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OPG v. Diebold
•
•
No reasonable copyright holder could have believed that the
portions of the email archive discussing possible technical
problems with Diebold’s voting machines were protected by
copyright, and there is no genuine issue of fact that Diebold
knew—and indeed that it specifically intended--that its letters to
OPG and Swarthmore would result in prevention of publication of
that content.
… The fact that Diebold never actually brought suit against
any alleged infringer suggests strongly that Diebold sought to
use the DMCA’s safe harbor provisions—which were designed to
protect ISPs, not copyright holders—as a sword to suppress
publication of embarrassing content rather than as a shield to
protect its intellectual property.
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Questions so far?
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One Specific Set of Legal Threats:
Recording Industry vs. The World
•
•
•
•
Napster, Aimster, Grokster…
DMCA Subpoenas
Pre-litigation letters
“John Doe” lawsuits
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Wrong Turns
• Even if record labels have the legal right
to pursue copyright infringers through
lawsuits against individuals, these suits
do more harm than good
• The labels’ rights cost the public too much to
enforce
• Particularly when they target educational
institutions
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Educational Institutions
Caught in the Cross-Fire
• Asked to forward pre-litigation letters to students
• Asked to identify students from sometimes-ambiguous
IP address matches
• Asked to filter and monitor their networks
• Asked to report to Congress
• None of these matches an educational
mission; all interfere with the school’s right to
define that mission
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P2P Use Keeps Rising
• Napster, Aimster, Grokster
… DirectConnect, PirateBay,
Small-world networks
• Even as some companies are
shut down, new sites and
technologies arise to replace
them
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Lawsuits Aren’t Helping
• Not stopping peer-to-peer
• Not paying anything to the artists
• MPAA has just acknowledged its figures
were way off – even on its statistics,
college students accounted for barely 1/3
the revenue loss MPAA originally claimed
(15%, not 44%)
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Pre-Litigation Identification:
Skirting procedural safeguards
• DMCA Subpoenas
• The RIAA first tried to get identities without
suing; ISPs stopped that in court
• RIAA v. Verizon; RIAA v. Charter
• Pre-litigation letters
• Record labels request educational institutions
to forward:
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“John Doe” Lawsuits
“When you go fishing with a driftnet,
sometimes you catch a dolphin.”
— RIAA Spokesperson
• Though labels must now file in court, the
absence of an adversary in pre-litigation
discovery still allows shoddy investigation
• Unrelated Internet users may get caught
in the driftnet: friends, roommates
• Students are scared into settling; find the
penalties disproportionate
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On-Tap for Schools
• More pre-litigation letters, subpoenas for
student information, and lawsuits
• More frustrated students, who want open
research networks and better lawful
access to music
• Congressional pressure, spurred from the
entertainment companies, to mandate
“technology-based deterrents” through
higher education funding bills
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Instead, Let the Net Amplify Our
Calls for Network Freedom
• Education
• Exploration
• Sharing
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Education
• Educate Congress on the costs of giving
industry control over educational
networks
• Costs to educational and research mission
• Costs to academic freedom
• Costs to network administration
• Not the one-sided “copyright education”
in that equates all copying with theft, but
thoughtful discussion of the economics of
music production and networked peer
production
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Exploration
• Explore better ways to let users get and
share music: together, education
networks could negotiate a blanket
license on open terms
• A better balanced discussion in Congress
could spur this kind of negotiation
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Sharing
• The record labels’ lawsuits operate by
singling out individuals
• Counter their force by sharing:
•
•
•
•
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Strategy among schools
Legal information for students
Alternatives for Congressional action
Your own creations under freer copyright
licenses
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Reprise
• The public is hungry for better alternatives
• See http://eff.org/
• http://www.chillingeffects.org/
• http://cyber.law.harvard.edu/
• http://connect.educause.edu/term_view/P2P+or+File+Sharing
• http://recordingindustryvspeople.blogspot.com/
• Please join me for ongoing discussion!
• [email protected]
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Thanks!
Wendy Seltzer
Fellow, Berkman Center for Internet & Society
Visiting Professor, Northeastern University School of
Law
[email protected]
+1.914.374.0613
http://www.chillingeffects.org/
http://cyber.law.harvard.edu/