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

[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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