IP: DMCA is a "copyright cudgel," from Chron. of Higher Education

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Declan McCullagh <declan () well com>


http://chronicle.com/free/v48/i47/47b00701.htm

    From the issue dated August 2, 2002
    Copyright as Cudgel

    By SIVA VAIDHYANATHA

     Let's pretend that a journal has just published your harshly
    negative review of a book in your field. In this review, you
    quote short passages from the book, confident that the
    long-accepted concept of "fair use" enables you to make even
    unwelcome use of copyrighted material for purposes of
    criticism.

    But a week or so after the electronic version of the review
    appears on the publication's Web site, the editors inform you
    that it violates the 1998 Digital Millennium Copyright Act,
    and that they are removing it. You are welcome to respond. You
    are free to argue that the use of the copyrighted quotes falls
    under fair use. But the publication is under no obligation to
    accept your defense. So you publish the review on your own Web
    page. But you soon discover that all of the major Web search
    engines have removed your site from their indexes.

    That couldn't happen, you say? Welcome to the new millennium.

    When Congress brought copyright law into the digital era, in
    1998, some in academe were initially heartened by what they
    saw as compromises that, they hoped, would protect fair use
    for digital materials. Unfortunately, they were wrong. Recent
    actions by Congress and the federal courts -- and many more
    all-too-common acts of cowardice by publishers, colleges,
    developers of search engines, and other concerned parties --
    have demonstrated that fair use, while not quite dead, is
    dying. And everyone who reads, writes, sings, does research,
    or teaches should be up in arms. The real question is why so
    few people are complaining.

    Consider the recent case of the Church of Scientology
    International and the search engine Google. The wealthy church
    used the threat of a well-financed lawsuit -- and the 1998
    act's provision that a service provider will not be liable for
    infringement if it moves with "dispatch" to delete offending
    material -- to persuade Google to block links to several sites
    that included criticism of Scientology. "Had we not removed
    these URL's, we would be subject to a claim for copyright
    infringement, regardless of its merits," Google said.

    [...]



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