Legal Threats, Chilling Effects, and Warming the Air Wendy Seltzer Fellow, Berkman Center for Internet & Society Visiting Professor, Northeastern University

Legal Threats, Chilling Effects, and Warming the Air

Wendy SeltzerFellow, Berkman Center for Internet & SocietyVisiting Professor, Northeastern University School of Law [email protected]://www.chillingeffects.org/

http://www.chillingeffects.org 2 1/23/2008

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


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




Thousands of Cease-and-DesistDemands 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


• 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

People Are Silenced Even by Improper C&Ds

1/23/2008

http://www.google.com/

http://a9.com/

http://www.flickr.com/









Aibo goes to law school to learn to read EULAs


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


The “Streisand Effect”




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.



• Diebold sent cease-and-desists to individual posters and to their ISPs, invoking the Digital Millennium Copyright Act


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


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.


• 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.

OPG v. Diebold




Questions so far?


One Specific Set of Legal Threats: Recording Industry vs. The World

• Napster, Aimster, Grokster…• DMCA Subpoenas• Pre-litigation letters• “John Doe” lawsuits


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


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


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


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%)



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:



“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


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


Instead, Let the Net Amplify Our Calls for Network Freedom

• Education• Exploration• Sharing


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


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


Sharing

• The record labels’ lawsuits operate by singling out individuals

• Counter their force by sharing: • Strategy among schools• Legal information for students• Alternatives for Congressional action• Your own creations under freer copyright

licenses


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]








Thanks!

Wendy SeltzerFellow, Berkman Center for Internet & SocietyVisiting Professor, Northeastern University School of Law [email protected]+1.914.374.0613http://www.chillingeffects.org/http://cyber.law.harvard.edu/

Documents

Legal Threats, Chilling Effects, and Warming the Air Wendy Seltzer Fellow, Berkman Center for Internet & Society Visiting Professor, Northeastern University