October 4, 2000 1:30 PM PDT
Sega wants to silence advice on hacker sites
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Sega has launched a campaign of cease-and-desist letters against a list of Web sites that provide news about pirated Dreamcast games, including release information, reviews, credits and some instructions. Although most of these sites are shutting down rather than facing the giant, at least one news site is fighting back, saying that the copyright holders have gone too far.
Jennifer Granick, the attorney representing Web site Isonews, says Sega has stepped over the line in asking her client to kill a message board devoted to the Dreamcast player. The request, she says, could put new limits on what kind of speech is deemed legal inside a bulletin board-style forum service.
"Really this is a wholesale attack on the concept of unmoderated forums because they theoretically allow people to post information about copyrighted material," Granick said. "By that logic, you could shut down Usenet newsgroups. You could shut down AOL's forums."
Sega's efforts come as companies and publishers are struggling to figure out how copyright law translates online and if a rising tide of online piracy can be stemmed under existing rules.
An attorney for Sega demanded late last month that Isonews.com and several other sites remove their Dreamcast-focused sections or face legal action, citing the Web sites' history of providing "guidance" in how to make illegal copies of Dreamcast games and instructions on downloading and burning the games.
Isonews says it has a policy of taking down any links to actual games or software, which is conceded by Sega's lawyer. However, "your efforts to prevent your forum participants from posting Dreamcast file links and requests have not been entirely successful," Sega attorney Daniel Harris wrote in an email to the Web site.
Harris also focused on the Web sites' forums, saying that those areas must be closed because potentially illegal information had been posted there.
At this point, Isonews and Sega are in the early stages of a legal standoff. Sega has demanded that Isonews take down the Dreamcast portions of its site. The operators initially took down all Dreamcast information but now have reposted reviews and information about cracked games, while keeping the Dreamcast forums closed.
The year-and-a-half-old site says it doesn't want to get into a protracted legal battle--it's run by volunteers and does not have the funding to take on an opponent like Sega. No lawsuit has yet been initiated by either party.
Granick says Sega's request amounts to an unconstitutional violation of free speech rights. Sega can contact Isonews about specific information or a link it believes is infringing, she says--and this is routinely done under the Digital Millennium Copyright Act, which outlaws so-called circumvention tools aimed at disabling copy protections. But demanding that Isonews remove the entire Dreamcast forum section goes beyond the bounds of existing copyright law, she contends.
Sega itself says that it's not worried about news content and if that were all it had found, it would not be pursuing the potential of legal action.
"We're very sensitive about First Amendment rights vs. property rights," said Leonard Slootmaker, Sega's general counsel. "We're not trying to stop news; we're just trying to stop piracy."
A new legal front?
The Sega letters, at least in the case of Isonews, appear to be testing the boundaries of copyright law in several respects.
Although the site does discuss games and activities that are illegal, its editorial content is not so clearly out of legal boundaries, attorneys say. First Amendment law does go a long way to protect publishers' rights to discuss illegal acts in detail and even give instructions on how to perform them. Publishers can be sued if they are deemed to have published illegal content such as pornography or libel but cannot be prevented in advance from disseminating the information.
Isonews contends that it is simply a news site, although admittedly with controversial content.
"We are a nonprofit news and information site that reports alleged acts of piracy while providing the Internet public a forum to discuss matters of copyright infringement with the benefit of current information," Isonews contributor Wayne Chang, a Massachusetts high school student, wrote in an email interview.
Letters received by several other Web sites included contentions that the sites had illegally provided copies of copyrighted Sega game documentation or artwork. An email to Isonews did not cite specific infringements and avoided those issues.
Sega's actions are just the latest in a string of legal challenges to Web sites that host tools and discussions of techniques for circumventing copyright protections and allegedly facilitating piracy.
The most prominent case focusing on the issue is the record industry's ongoing effort to shut down music file-swapping firm Napster. That company's software provides a directory of songs hosted by individuals and helps facilitate direct connections between individuals, instead of copying songs itself. But that's enough to make it liable for contributory infringement, the music labels argue.
Copyright infringement law was pushed to its limits in another recent case, in which 2600 Enterprises publisher Eric Corley was held to be contributing to copyright infringement for posting--and even linking to--the DeCSS software code that helps computer users to copy protected DVDs. That's one of several recent cases that have held that linking itself could be deemed copyright infringement, but that idea has yet to be upheld by any appeals court, attorneys say.
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