December 5, 2005 2:20 PM PST

Free speech under Net attack, study says

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 users.

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 proceedings.

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 notices.

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 grassroots."


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Fair Use...
The copyright law defines "fair use". Read that, and adhere to it. As long as your not copying entire CDs or DVDs for everyone then you will be fine--end of story.
Posted by james.grimes (58 comments )
Reply Link Flag
HAHA... Don't we wish
end of story? No, not at all. Perhaps you'll want to read and anhere to the DMCA... which says the second you circumvent the encryption on that DVD you are trying to "partially copy," you are a criminal.
Posted by David Arbogast (1709 comments )
Link Flag
It's not defined...
If you read the statute, it gives a list of
examples, and then more specifically defines
fair use as "any use that may be reasonably
deemed fair". So, there are examples, and no
concrete standard.

However, courts have iterated over and over
again that the lack of a specific definition of
fair use in the law is significant and
completely intentional. Similar to the standard
of being guilty until proven innocent, copyright
law is intended to treat any use as "fair" until
the matter is brought to court and ajudicated
otherwise. That adjudication is based on some
precedent, but more so at the discretion of the
court (using the "I don't have a legal
definition for pornography, but I know it when I
see it" logic).

This is what these folks are on about. Companies
are now shutting down websites, getting things
taken off the air, etc. because they object to
them. ISPs and broadcasters simply comply with
the request for fear of getting sued. The fact
that the majority of this stuff is "fair" use
and perfectly legal is never considered. In
eliminating liability by promoting censorship, a
situation has appeared where deep-pockets get to
say what is and isn't publishable.

If the government tried it, it would be prior
restraint or censorship. Corporations do it,
however, with Uncle Sam's blessing.

What really irks people, of course, is that this
is EXACTLY the situation that copyright law
(going back a few hundred years to England) was
meant to ameliorate.
Posted by Gleeplewinky (289 comments )
Link Flag
copyrights & fair use
I don't know about you, but to me when I buy a cd,or dvd, I have paid for that copyright, it is mine to do as I wish. I can make copys, or let anyone I wish to make a copy. I paid for that right when I bought it.
Posted by Earl (60 comments )
Link Flag
Economics 101
It's classic Milton Friedman. The copyright holders have focused interests in protecting their IP (and usually very deep pockets) whereas Joe Sixpack has a diffuse interest in fair use. In either case, who do you think has Senator Specter's ear? Was that last comment about a grass roots movement a joke?
Posted by (2 comments )
Reply Link Flag
More Complex Economics
your remark just covers the initial considerations of copyright. the writers of the constitution (wherein copyright law is allowed to the U.S. federal government) agonized over the purpose of copyright law. they were both concerned with providing an incentive for the creators of copyrightable works, thus generating more such works, and with allowing for the use of those works to create yet other works. fair use flows from these concepts of our founding fathers. they provided a much shorter period for copyright to exist for a single item than today, both because it moved it more quickly into the public domain where it could be used to create other copyrightable works (ie, sleeping beauty the book into a disney movie), and because a shorter holding period discouraged the creative talent from "sitting on their butts raking in the dough without doing any more work" (i use quotes because of the irreverent way i state that, not because a founding father ever stated it that way!!!).

anyway, in today's world the copyright holders, in the form of big business, believe that a copyright should exist on a product as long as there is profit to be made.

end of story.

mark d.
Posted by markdoiron (1138 comments )
Link Flag
Even TRUTH is being censored on the Net
The state of the Net now is I can't even say what I want to say here! Even if I use a fake name, they still got my IP address!

So, how is this going to be better in 10 years' time? How is the Net going to help bring out a better system of society for people?
Posted by npxzbebq (78 comments )
Reply Link Flag
He quit, claiming the wheels of politics are to fast for him
They always had your IP address. Back in 1999 I was at a newspaper forum that didn't like the way I talked in their politics section so they blocked me from posting. I tried changing my name and that's how I found out. I still couldn't post. I'm afraid to say which paper it was, but I'll tell you this much, I put down their governor and they couldn't have that because he's already tried to punch their lights out. A fighter he was!
Posted by casper2004 (267 comments )
Link Flag
Need for anonymizer software.
What people need is built in anonymization software to encrypt their surfing habits from their ISPs. That'd be a start.
Posted by lewissalem (167 comments )
Reply Link Flag
Our technology is such
that if you can think of it you can bet it's out there. Right now though, government won't let us have it because they are in the process of shoving big brother down our throats
Posted by casper2004 (267 comments )
Link Flag
i2p OR tor
Posted by m_f_0 (1 comment )
Link Flag
Adobe's abuse of this copyright provision
Five or six years ago, at the beginning of what was called the Sklyarov case (Dimitry Sklyarov was the Russian graduate student who went to work for a Russian company called Elcomsoft and was arrested when visiting the U.S.), Adobe believed that Elcomsoft was violating the DMCA by selling a program that would open the content of a "locked" PDF.

But what they did was accuse Elcomsoft of violating their copyright (as some sites were, by posting illicit copies of Photoshop) -- Elcomsoft wasn't, but the company's website was shut down from three different ISP's because of Adobe's lie.

While this episode has stained Adobe's reputation forever, what sticks in people's minds is how Adobe sicced the FBI on an individual presenting a paper at a conference. Few people realize how Adobe manipulated this provision to harm Elcomsoft.

But I haven't forgotten. AFAIK, Adobe never acknowledged its abuse to harm another company.

Roger Sperberg
Posted by rsperberg (4 comments )
Reply Link Flag
UnFair Use
My biggest gripe about "fair use" is where college professors or TAs photocopy whole sections of a book, pass them out in class (or sell them in a syllabus!!) with no compensation to the author.

The courts have to straighten out compensation for us print authors before even attmpting to wade into the digital morass.

On another note, to call someone a "remix artist" is a joke. If their version was any better than the original, they would have been hired as the producer originally.
Posted by Too Old For IT (351 comments )
Reply Link Flag
Not Just About Remix Artists
setting aside the artistic talent of remix artists, the issue is the availability of previously copyrighted works for the use of others in the creation of new works. a good example might be sleeping beauty (okay, a bad example since the fairy tale was likely never copyrighted). here's a work that disney remade as a wonderful animation.

now, suppose that a different copyrighted work could be forced into the public domain because of improved fair use and, more important to me, shorter copyright lifecycles. personally, i'd love to see Peter Jackson make a movie version of "the hobbit", but that will probably never happen because of disputes over ownership. you may not like remix artists, you may not even like Tolkien, but surely there's some copyrighted work that would interest you if someone else had a chance at it with either broader fair use provisions, or once it entered public domain?

mark d.
Posted by markdoiron (1138 comments )
Link Flag
Fair use = software piracy?
I take anything these authors say with a huge grain of salt considering how they use information from as evidence of the quashing of free speech. seems to believe that search engines have every right to list web sites that publish software cracks and serial numbers to allow the illegal use of software. Companies that send in a DMCA notice to Google regarding such piracy links Google includes in their search listings will see their notice immediately appear on the web site. Note this this is the only option Google gives for companies in this situation. Apparently and Google feel it constitutes free speech to help others engage in software piracy.

I understand that ordinary people like to get software for free. I also understand that large companies like Google want to be able to do anything they want. In the middle are small companies struggling to survive.
Posted by CMatrix (20 comments )
Reply Link Flag
Creative Commons replacing Fair Use
Fair Use is state controlled where Creative Commons is more non-profit, like ICANN, and clearly defines between all nations.
Posted by Blito (436 comments )
Reply Link Flag
go free!
<a class="jive-link-external" href="" target="_newWindow"></a>
Posted by 208774626618253979477959487856 (176 comments )
Reply Link Flag

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