FC: An open letter to the Internet Archive on Scientology and the DMCA

[Declan McCullagh <declan () well com>]

News report on Scientology's successful attempt to have pages removed from 
the Internet Archive (at archive.org):
http://news.com.com/2100-1023-959236.html

Scientology's recent white paper a church spokeswoman sent to Politech:
http://www.politechbot.com/p-03917.html

I'd like to invite both the Archive folks (who provide an excellent and 
valuable service) and a Scientology representative to reply to Politech and 
clarify what's going on. It would be a public service for the Archive to 
publicize what procedures it will follow when receiving DMCA 
cease-and-desist letters in the future. It could, for instance: (1) change 
the default "page deleted" text; (2) forward the letter to 
chillingeffects.org; (3) offer the archivee the opportunity to reply; (4) 
investigate the request to make sure it's not overly broad; (5) pledge to 
do its best to preserve the public availability of information in the Archive.

It would be a public service for Scientology to state that it's interested 
only in pursuing legitimate violations of its copyrights that are not 
protected by a reasonable definition of fair use and it has no intention of 
going further than that. If its request to the Archive was broader, and it 
seems to be, I'd encourage Scientology to narrow it.

-Declan

---

From: Dave_Touretzky () cs cmu edu
To: info () archive org
cc: brewster () alexa com, media-relations () parc com, hugh.scott () hp com,
   declan () well com
Subject: open letter to the Internet Archive
Date: Tue, 24 Sep 2002 19:48:06 -0400

As the owners of SlatkinFraud.com, one of the websites that has been
blocked completely from the Internet Archive, we were left puzzled and
disturbed by the recent explanation provided by archive.org for our
site's omission.

While we understand that the organization behind the Wayback Machine
does not want to unwittingly contribute to copyright infringement, we
are distressed by the way in which the removal of our site was
conducted, and the lack of feedback that we received from archive.org
when we questioned this decision earlier this year.

When a Wayback Machine user attempts to access the archived version of
SlatkinFraud.com, they are instead provided with a misleading message
claiming that the 'site owners' requested that it not be included in
the archive.  This is wholly untrue, and entirely in contradiction to
the actual views of the website owners in question, who would very
much like to see our site become part of the Internet Archive.  The
material contained within SlatkinFraud.com is wholly owned and
maintained by its site owners.

Unfortunately, as has become clear in recent days, SlatkinFraud.com is
not the only site that has been summarily removed from the Archive
based on complaints from the Church of Scientology.  In the explanation
recently provided by archive.org, the writer notes that the Church
"asserted ownership" of an unknown quantity of material that was, at
the time, available through the Wayback Machine archives.  The
maintainers of archive.org, however, have apparently made no effort
whatsoever to inform site owners of these complaints lodged against
their material, and in fact, until now, had not even replied to direct
questions regarding the removal of certain sites when asked by the
site owners in question.

This is clearly not an acceptable system for determining what sites or
material should be archived by the Wayback Machine, since it does not
adhere to one of the main provisions of the Digital Millennium
Copyright Act: the counter-notification process.

Under the DMCA, the owner of a site that has been alleged to contain
infringing material has the right to challenge that claim via a
counternotification letter to the hosting ISP if he or she believes
that the material in question does not infringe on the copyright in
question.  After receiving this counter-notification from the user, the
ISP is obliged to replace any files that were temporarily removed
pending the complaint, at which point the original complainant must
either initiate formal legal action against the owner of the site, or
drop the matter entirely.

This system provides an important check to the sometimes perilous
balance between the rights of copyright owners, and those of users.  By
formalizing the process, and allowing a response from the individual
responsible for the alleged infringement, it frees the hosting company
from the annoyance of dealing with frivolous claims.

A similar situation that arose resulted from similar complaints made
by Church of Scientology lawyers about certain listings on the popular
search engine Google.  These complaints initially resulted in the
wholesale removal of several Scientology-related sites from the Google
database.  Once this omission was discovered, the decision taken by
Google to remove the sites without notice led to an outcry from its
users.  In fact, on closer examination of the complaints from
Scientology, it became immediately obvious that the Church's lawyers
were acting in bad faith by deliberately mixing trademark and
copyright complaints, even though trademark complaints are not covered
under the DMCA at all.

The ensuing barrage of criticism and media coverage both national and
international forced Google to reconsider its decision.  After several
days, the company replaced the links in question, and agreed to make
public any further DMCA complaints in cooperation with Chilling
Effects, a non-profit website dedicated to preventing abuse of
existing copyright law.  This solution was welcomed by Google users,
who had felt betrayed not only by the removal itself, but by the lack
of disclosure on the part of Google regarding the initial complaints.

The explanation offered by the Internet Archive does not mention
whether the original complaints received from the Church of
Scientology were made under the provisions of the Digital Millennium
Copyright Act.  Such information would be helpful to site owners such
as ourselves, as it would assist us in determining whether a complaint
is justified, and remove any infringing material on our own volition.

Assuming that it was, in fact, a DMCA request, it would serve
archive.org well to follow the same procedure as that eventually and
successfully - - adopted by Google, and make every effort to inform
site owners of such complaints in a timely manner.  This could be done
through a simple email alert system that would inform the site owner
that a complaint had been made, or through a similar policy to that of
Google, and publicizing the letters, either on the archive.org website
itself or through an interested third party such as Chilling Effects.

This would allow the site owners to decide whether or not to issue a
counter-notification, and relieve the Internet Archive of any concerns
over contributory liability that may have played a role in its
decision to remove the material without warning.  It would also
discourage copyright owners from making frivolous complaints about
material that is obviously protected by fair use, since the process
requires that formal legal action be taken within thirty days of
receiving the counter notification letter.

Should archive.org decide not to re-list a site within the Wayback
Machine at this point, which is, of course, its right, it should also
refrain from suggesting that this was at the request of the site
owner, and instead, explain its own concerns over potential
infringement.

Finally, given the enormity of the Internet Archive project, and the
benefits that it has provided, and, we hope, will continue to provide
to the online community, it is essential for the Library maintainers
to be open and transparent about the methodology used in selecting
sites to be archived.  Removing sites from the archive in a clandestine
fashion, as dictated by the current policy, will only lead to
increased concern that the Archive itself is rewriting the Internet
history that it seeks to chronicle.

The Internet Archive's stated commitment is to provide a useful,
wide-ranging resource for researchers, historians and scholars.  It is
surely in part due to such an admirable mandate that the Internet
Archive has benefited from contributions from sponsors such as Alexa
Internet, AT&T, Compaq and Xerox PARC, not to mention many individual
supporters who believe in the idea of an Internet history that is
freely accessible to all.  It is doubtful that these supporters would
want to see this ambitious initiative tainted by the suggestion that
the integrity of the archive itself has been corrupted by those who
would misuse copyright and trademark laws to censor views with which
they disagree.  The risk of such silent, selective discrimination
against protected speech is great; the power to prevent such abuses by
making all information related to such attempts to discriminate will
always be greater.

Clearly, the best course of action is for the Internet Archive to
adopt policy that is not only transparent, but dedicated to protecting
not only its own interests, but those of copyright owners, site
creators and, of course, the thousands of individuals who use the
Wayback Machine and other Internet Archive services on a daily
basis.  On balance, the approach taken by Google, modified
appropriately for the particular situation faced by the Internet
Archive, would seem to be an excellent roadmap for the Internet
Archive to follow.

Kady O'Malley, Dave Touretzky, and Scott Pilutik

Owners of SlatkinFraud.com




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