April 23, 2004

Who Will Be Eaten First?

Wendy Seltzer introduced us to Chillingeffects.org. They are concerned particularly with the deterrent effect of legal threats or posturing, which occurs often independent of the merits of the legal claim. Threats which sometimes have no backing in the law sometimes have deterrent effects.

At chillingeffects.org, you can submit a cease and desist notice that you have received, telling you to remove infringing material. They are annotated by students at various participating clinics, with links to explanations of the law. This helps the recipients understand their legal rights. The notices go into a database which others can search to learn more about the scope of online chill. They have 1300 notices at last count.

Chilling effects has a series of goals:

  • To collect and analyze data on how the law is being used (or abused) against online activity
  • To help internet users understand and defend their online rights
  • To shame the senders of flawed C&D letters, to increase the “cost” of sending them
  • To train internet-savvy future lawyers at law school clinics
  • To use the data to inform academic research, journalism, policy, and litigation

Agnes Li from Harvard's Berkman Center spoke about trademark cease and desists. Trademark defenses available to alleged infringers include descriptive fair use, nominative fair use, and noncommercial use (ACPA) (commentary, criticism, parody, news reporting, etc.).

Review strategies used by reviewers include looking up the trademarks in the USPTO TESS federal trademark registration database to see if the trademark is actually registered, or would qualify for CL trademark protection (Google!). They will also perform a whois search for domain registration data.

Research from Harvard’s clinic shows that about 60% of notices had indefensible claims, but more than half of the people that received the letters did alter their sites.

Jennifer Urban, from Boalt Hall's Samuelson Clinic, spoke about DMCA's § 512. DMCA § 512 is intended to shield OSPs (broader definition than ISPs) from secondary copyright liability and to make it easy to remove allegedly infringing info from the internet. In theory, 512(c) allows the copyright holder to send a cease & desist letter to the OSP, notifying them of the copyright infringement. The OSP takes down the content, then notifies the alleged infringer, who has a option to file a counter notice with the OSP, who goes back to the copyright holder, and within 10-14 days if the copyright holder doesn’t file suit, the OSP puts the material back up.

This process is preferable because the OSP doesn’t have to monitor content themselves, and figure out what might be infringing. However there are also some concerns with this process. There is a strong bias towards takedown even if the material is legitimate. The process is relatively easy and cheap for a complainant to use, and it is easy for the OSP to take them down with no difficult review. The counter-notice is theoretically easy, but requires some level of knowledge, such as requiring the alleged infringer to know of and act on possible defenses. Practically speaking, it also requires submission to US jurisdiction. Plus, most importantly—the takedown happens first.

An example: Howard Hallis’s Cthulu Chick Tracts and HP Lovecraft fans.

Who is sending notices? Mostly corporations. Most notices are done without notices. There are a LOT of repeat senders: the Church of Scientology, Mir Internet Technologies (?), Sharman Networks (of Kazaa fame). 35% of complainants are competitors of infringers. 20% foreign complainants. The biggest request is for links to be removed (from Google, who contributes a lot of C&D notice for research). Who are the alleged infringers? 40% are foreign (remember, you must accept US jx in order to send a counter-notice). 33% of notices are defective for various reasons. Who sends defective notices? Unrepresented businesses and lawyers!!

Results? Vast majority = takedown, according to Google’s process. No counter-notices from Google, or very few. The fact that almost all this data comes from Google effects results: different taking down links than taking down content?

Posted by taraw at April 23, 2004 03:25 PM
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