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FAIR USE
SURVIVE?
Free Expression in the Age
of Copyright Control
D em o c r ac y P r o g r am
Free Expression Policy Project
D em o c r ac y P r o g r am
Free Expression Policy Project
Michael Waldman
Executive Director
Deborah Goldberg
Director
Democracy Program
Marjorie Heins
Coordinator
Free Expression Policy Project
The Brennan Center is grateful to the Rockefeller Foundation, the Robert Sterling Clark
Foundation, the Nathan Cummings Foundation, and the Andy Warhol Foundation for the
Visual Arts for support of the Free Expression Policy Project.
© 2005. This report is covered by a Creative Commons “Attribution – No Derivs – NonCommercial” License
(see http://creativecommons.org). You may copy it in its entirety as long as you credit the Brennan Center for Justice,
Free Expression Policy Project. You may not edit or revise it, or copy portions, without permission (except, of course,
for fair use). Please let us know if you reprint.
Portions of this report were published in the Proceedings of the Conference on Free Culture & the Digital Library at
Emory University, October 14, 2005.
“F
air use” is a crucial part of our Our analysis of 320 cease and desist and
copyright system. It allows any of us take-down letters from the Chilling Effects Web
to quote and reproduce parts – or site indicated that more than 20% either stated
sometimes all – of copyrighted works, if the use weak copyright or trademark claims, or involved
advances creativity and democratic discussion. speech with a strong or at least reasonable free
There are similar free expression safeguards in expression or fair use defense. Another 27%
trademark law. Together, they assure that the attacked material with possible free expression
owners of “intellectual property” cannot close or fair use defenses. Thus, almost 50% of the
down the free exchange of ideas. letters had the potential to chill protected
speech. The materials targeted by the letters
These safeguards in our copyright and trade-
ranged from criticism of a Scientology-like
mark systems are at risk today. Threatening
“planetary enlightenment” program to parodies
“cease and desist” letters cause many people
of American Express and Mastercard.
to give up their fair use rights. Even more
troublesome are “take-down” notices sent by Our telephone interviewees included the
copyright owners to Internet service providers, creator of a parody New York Times corrections
which pressure them to remove online speech page, an editor at the Cape Cod Voice, and small
without any court having ruled that it is ille- entrepreneurs using such terms as “Pet Friendly”
gal. Additional hurdles to fair use come from Travel or “Piggy Bank of America.” Five of them
the “clearance culture” in many creative indus- had strong or at least reasonable fair use or First
tries, which assumes that almost no quote can Amendment defenses, and four had possible de-
be used without permission from the owner. fenses. Another seven received cease and desist or
Meanwhile, educational “fair use guidelines,” take-down letters with weak copyright and trade-
which are often narrower than fair use law, pre- mark claims. Yet nine of the 17 people we inter-
vent many teachers from copying material for viewed acquiesced in the copyright or trademark
their classes. owners’ demands, or had their material removed
because of take-down letters.
290 people filled out the online survey, ex-
In late 2004, the Brennan Center for Justice pressing opinions about, and experiences with,
began a research project to learn how well fair copyright and fair use. Their stories ranged from
use and free expression are faring among artists, an artist who made “Homeland Security” blankets
scholars, and others who make critical contribu- to a fan fiction Web site that posted a story called
tions to culture and democratic discourse. We “Gaelic Dreams” and received a cease and desist
conducted focus group discussions, telephone letter from the “Gaelic Dreams” import company.
interviews, an online survey, and an analysis of Numerous teachers and scholars expressed frus-
more than 300 cease and desist and take-down tration with a clearance culture that locks images
letters that have been deposited with the “Chill- out of public view whenever an owner refuses per-
ing Effects” Clearinghouse. mission or charges too high a price.
Our discussions with members of PEN What can be done to bolster fair use and free
American Center, Women Make Movies, the expression in the digital age? Our recommenda-
College Art Association, and the Location One tions include creating a clearinghouse for infor-
Gallery yielded two common themes. The first mation, including sample replies to cease and de-
was that artists and scholars have great interest sist letters and take-down notices; a legal support
in, and confusion about, fair use. The second network; outreach to Internet service providers to
was a need for community support and pro bono encourage help for those targeted by take-down
legal assistance in their dealings with publishers, letters; and changes in the law to reduce the cost
distributors, and other cultural gatekeepers. of guessing wrong about fair use.
I
n 1997, the artist Tom Forsythe created unauthorized commentary is one of the central
“Food Chain Barbie,” a series of photo- purposes of fair use.
graphs depicting the iconic Barbie doll in
In 2004, the Brennan Center for Justice
conjunction with various kitchen appliances.
began a research project to learn how well fair
These included “Malted Barbie,” “Fondue à la
use and other free expression safeguards in
Barbie,” and “Barbie Enchiladas,” four dolls
intellectual property, or “IP,” law6 are serving the
wrapped in tortillas and lying in a casserole
needs of artists, scholars, and the rest of us. This
dish. Forsythe said his creations were designed
report summarizes our findings, and ends with
“to critique the objectification of women asso-
six recommendations for strengthening free
ciated with Barbie, and to lambaste the con-
expression and fair use in the digital age.
ventional beauty myth and the societal accep-
tance of women as objects, because this is what
Barbie embodies.”1
Free Expression and Fair Use:
The Mattel Company, owner of Barbie,
sued Forsythe for violating its copyrights and
A (Very) Brief History
trademarks. After four years of hard-fought Fair use is probably the best-known free
litigation, a federal court ruled that “Food expression “safety valve” in our copyright
Chain Barbie” was not illegal; instead, it was system. Copyright law gives authors, artists, and
protected as a fair use under both copyright musicians – or the companies they work for – the
and trademark law. “The benefits to the public “exclusive right” to reproduce, distribute, and
in allowing such use – allowing artistic freedom perform their works, or to allow others, usually
and expression and criticism of a cultural icon for a fee, to do so.7 But fair use is an exception to
– are great,” the court said. Allowing Forsythe this monopoly control. It allows anyone to copy,
to use Barbie without permission “serves the publish, or distribute parts – sometimes even all
aims of the Copyright Act by encouraging – of a copyrighted work without permission, for
the very creativity and criticism that the Act purposes such as commentary, news reporting,
protects.”2 education, or scholarship.
Not all creative spirits are as fortunate Fair use is critical to political and cultural
as Tom Forsythe. Most controversies over life. If permission were required every time a
parodies and other “transformative” uses of document is copied for personal use, or a quote
copyright or trademark-protected materials or image is incorporated into a new work, the
– and over simple copying for educational, costs and logistical difficulties of finding owners,
personal, or professional purposes – never get seeking licenses, and paying for them would
to court. And if they do, the person charged cripple our ability to share ideas. Education
with infringement rarely has access to the would be severely hampered if teachers had to
substantial pro bono legal resources that were get permission for every article or picture they
crucial to Forsythe’s success.3 copy for classroom use. And copyright owners
could censor speech by denying permission to
In the late 1990s, for example, Fox
anyone whose views they disliked.
Broadcasting succeeded in shutting down more
than half of The Simpsons fan sites that were As the Supreme Court has said, every work of
listed on one database.4 Warner Brothers has “‘literature, science and art borrows, and must
suppressed sites containing irreverent parodies necessarily borrow, and use much which was well
of such Looney Tunes favorites as Bugs Bunny, known and used before.’”8 From classical music
Daffy Duck, and Tweety, claiming that these to jazz and rock ’n roll, Impressionist painting
“beloved characters” should not be maligned to Pop art, “appropriation” is a building block
by lascivious humor.5 Yet irreverent and of creativity. The concept of fair use, and similar
Warner Brothers.”
But movie studios remained aggressive. In
the 1970s, the Walt Disney Company won a
judgment against irreverent cartoonists whose
“bawdy depiction” of Disney characters “as
active members of a free thinking, promiscuous,
By the mid-20th century, there were many drug-ingesting counterculture” contradicted
court decisions on fair use. In one case, the “the accepted Mickey Mouse world of scrubbed
comedian Jack Benny was sued for a TV parody faces, bright smiles, and happy endings.”13 The
of the film melodrama Gaslight.10 Refusing to judges, although more open to parody as a form
accept parody as a potential fair use, the courts of fair use than the court in the Jack Benny case
rejected Benny’s defense. had been, said the cartoonists had copied too
much of the original images.
But ten years later, a court held that pictures
in a book criticizing the Warren Commission’s Another court unsympathetic to bawdy
report on the assassination of President John parodies rejected a fair use defense when the owner
F. Kennedy were a fair use. The pictures were of the song “Boogie Woogie Bugle Boy” sued
charcoal sketches copied from amateur film participants in a theatrical revue called “Let My
footage of the assassination that had been People Come,” which included a raunchy takeoff
bought by Life magazine and deposited in the on the song, titled “Cunnilingus Champion of
National Archives. The judge allowed the fair Company C.” The judges were offended by the
use defense because of the newsworthiness and sexual references, noting that “Bugle Boy” had
public importance of the book.11 “its greatest popularity during the tragic and
T
his chapter gives an overview of fair for the Ford memoirs, which “is undoubtedly
use and free expression under IP law.56 the single most important element of fair use,”
Readers who aren’t familiar with the legal and that an author’s “right to control the first
principles will find it useful, even though it’s too public appearance of his expression” is a “key”
brief to be considered definitive. Those who are factor weighing against quoting a work before it
already familiar with the law might want to skip is published.58
to chapter 2.
Seven years later, Congress amended §107 of
the copyright law to make clear that “the fact that
a work is unpublished” shall not “bar a finding
The Supreme Court and Fair Use of fair use.”59 And the Supreme Court itself soon
abandoned the idea that the fourth factor – the
In 1984, eight years after Congress overhauled
market for the original work – is necessarily the
the copyright law, the Supreme Court first
most important. The case involved the rap music
weighed in on fair use. The entertainment
group 2 Live Crew, which had requested and
industry had sued Sony in an attempt to stop
been denied permission to use music from the
distribution of video cassette recorders because
Roy Orbison song, “Oh, Pretty Woman,” in a
they could be used for unlawful copying. But
raunchy parody. An appeals court, following the
they could also be used to copy TV shows for
statement in the Sony case that every commercial
later home viewing, which the Court said was
use is presumptively unfair, had ruled against
a fair use – fortunately for all concerned, since
2 Live Crew without much consideration of
the industry was to earn huge profits on the sale
the other fair use factors. The Supreme Court
and rental of home videos in the decade that
reversed.
followed. In the course of defending personal,
noncommercial copying of TV programs as fair The Court noted that 2 Live Crew’s creation,
use, the Court made a broad statement which it although not great art, was a genuine parody of
later repudiated: that “every commercial use of the Orbison song that commented on “the naiveté
copyrighted material” is presumptively unfair.57 of the original” by rejecting “its sentiment that
ignores the ugliness of street life.”60 By its nature,
The next fair use case came a year later.
the Court said, parody must “conjure up at least
The Nation magazine had “scooped” former
enough” of the original “to make the object of
President Gerald Ford’s not-yet published
its critical wit recognizable.” To the extent that a
memoirs in an article that focused on Ford’s
parody, or any other new work commenting on
pardon of his predecessor, Richard Nixon, who
an earlier one, is transformative, superseding the
had resigned the presidency in 1974, under
original creation with something new, it has a
threat of indictment for his involvement in the
strong claim to fair use.61
Watergate burglary. The Nation’s scoop caused
Time magazine to renege on a contract for “first As for the commercialism of 2 Live Crew’s
serial rights” with the publisher of the memoirs, recording, the Court said that just as “the
Harper & Row. mere fact that a use is educational and not for
profit does not insulate it from a finding of
Even though The Nation had reported news
infringement,” neither does “the commercial
of great political interest, and took only 300
character of a use” bar a finding of fairness. If it
words from Ford’s book, the Supreme Court
did, then “nearly all of the illustrative examples”
rejected its fair use defense. The Court said those
in the fair use statute would be meaningless,
300 words were the heart of the memoirs, that
for news reporting, comment, scholarship, and
The Nation’s scoop interfered with the market
research are usually done for pay, and as Samuel
T
o learn how artists, writers, and scholars know how I got the number, but I get this man
experience the tension between IP who’s audibly tan and I say, ‘I’m hoping that
ownership and free expression, we you’ll give me permission.’ He said, ‘yeah, you
conducted four focus group discussions, with can have permission and it’ll be $5,000.’ I said,
members of PEN American Center, Women ‘that’s double my advance. This is a small literary
Make Movies, the College Art Association, and novel.’ I said, ‘I can’t pay that.’ He said, ‘it’s a
Location One Gallery in New York City. Each very popular song.’ I said, ‘I know, but the book
discussion reflected different concerns, but there doesn’t depend on including these words, so if
were also common themes – in particular, the you make it $5,000, I’m not going to include
difficulty of getting accurate information about them.’ There was a long pause, and he said,
fair use, and adequate help in protecting free ‘would my mother like this book?’ I said, ‘yes;
expression and fair use rights. The participants I absolutely guarantee it.’ He said, ‘okay. Send
expressed differing opinions about what a copy to me and a copy to my mother and you
constitutes fair use, not all of them accurate. can have it.’”
They also described confusing, frustrating, and
This experience was lucky for Robinson, but
sometimes exhilarating experiences.107
was the publisher correct that her brief quotation
required permission? Industry practice may
dictate permission for just two lines, but there is
PEN American Center no such firm rule in the law.
Seven writers participated in the focus Our anonymous participant had a different
group, which met on February 28, 2005. approach, at least at the start of his career:
Roxana Robinson writes short stories, novels, “Since I have a doctorate in English and I began
and biography. Andrew Hultkrans writes on writing in the golden age of deconstruction, my
music and is interested in sampling. Daniel intellectual life had at its foundation the notion
Meltzer writes fiction, drama, and newspaper that I could steal creatively. In my first book,
columns, and is planning a book about it didn’t even occur to me that you have to ask
broadcast journalism. Betty Fussell writes permission to quote poetry when you were doing
nonfiction, including “a lot on the history of a service to make commentary on it.108 That was
food, cookbooks, and recipes.” Hannah Pakula naïve. And I realized that you can’t even quote
writes historical biographies. Hazel Rowley is a popular song without getting permission. I’ve
also a biographer; her subjects have included the paid a lot of fees. But there are many things I
writers Christina Stead, Richard Wright, and haven’t published because I haven’t had the heart
most recently, Simone de Beauvoir and Jean- to bother asking permission.”
Paul Sartre. The seventh participant, who writes
Betty Fussell added: “I grit my teeth – it is
fiction, nonfiction, and poetry, asked to remain
simply insane, and every book I have done, of
anonymous.
the ten, I have come across fair use issues. Once
Roxana Robinson encountered a fair use I quoted two lines from A. A. Milne, “What can
problem with her first book, the novel Summer be the matter with Mary Jane?/It must be we’re
Light. She quoted two lines of the popular having rice pudding again.”109 This was a little
song “Don’t Stand So Close to Me,” by The cookbook, and to my astonishment, I had to pay
Police – “and my editor said, ‘you have to get $250. That opened my eyes. It also infuriated
permission.’ So I have to call Hollywood. I don’t me on principle.”
us famous by just grabbing How do they feel when somebody else copies
their work? Clay Shirky uses Creative Commons
our clips and putting them licenses, but he tries to stop outright plagiarism.
“One time, some guy from Singapore stole a
someplace else, that’s great.” bunch of my articles. It wasn’t fair use, because it
was the whole article. I went directly to the guy.
And that was enough – it disappeared, because
it was embarrassing to him. He was doing it
to increase his credibility, not to derive money
Another issue that arose is copying for
from it. And so if his credibility was damaged by
informational purposes. Nayda Collazo-Llorens
being discovered, that was enough of a remedy.”
has published text on her own Web site “that
has been written either about my work or shows Heather Wagner mentioned a bandmate who
I’ve been in. And I’ve always mentioned where was reluctant to post digital clips of the band’s
it’s taken from. These are essays relevant to my music for fear that it might be stolen. “To me,
work. My Web site is a documentation of my that’s literally insane. If they do, if they post it to
projects, so whenever there’s text in a catalog or a P2P site, then as Clay says, if someone wants
a review from a newspaper, be it about my work to make us famous by just grabbing our clips
or about the shows I’ve been in, I’ve included and putting them someplace else, that’s great.”
T
he Chilling Effects Clearinghouse began Eighty-two percent, or 263 of the letters in
in 2002 when Wendy Seltzer, a fellow the sample of 320, were DMCA take-down
at the Berkman Center for Internet & notices received by ISPs. The remaining 18%
Society, realized that the Internet’s vast potential were cease and desist letters sent directly by
for people “to express their views, parody copyright or trademark owners to individuals
politicians, celebrate their favorite movie stars, or organizations. Many of the letters contained
or criticize businesses”132 was being threatened multiple allegations – for example, copyright
by the widespread practice of sending cease and infringement, trademark infringement, unfair
desist letters, or take-down notices under the competition, violation of trade secrets, improper
Digital Millennium Copyright Act (the DMCA). use of a Web address or domain name.
These letters usually demanded the suppression
of material that the senders claimed violated their Google contributed the great majority of the
IP rights. Many of these letters were not legally 2004 take-down notices (245). As a journalist
justified, but were nonetheless effective against recounts, Google became concerned that take-
non-lawyers and non-commercial sites. Seltzer down notices from the Church of Scientology
and other cyber-activists began ChillingEffects. regarding an anti-Scientology site called
org in order “to document the chill” by collecting “Operation Clambake”135 were depriving Web
examples of cease and desist and take-down surfers of information critical of the religion.
letters, and linking them to FAQs “that explain The company “‘realized that didn’t serve its
the allegations in plain English.”133 public very well, but they were looking for
something to help minimize their legal risk,
The more than 1,000 letters that have
and Chilling Effects was there to help.’”136
been deposited with Chilling Effects provide
Google decided to forward the take-down
information about what kinds of copyright or
notices to Chilling Effects while removing the
trademark infringement claims are made, the
listings from its index in accordance with the
number of those claims that are legally weak or
DMCA, and, in their place, inserting a link to
even frivolous, and the number that target Web
the notice on the Chilling Effects site.
pages or newsgroup postings which might be
considered fair use or have a First Amendment
Most of the take-down letters to Google
defense. Following up on the information in the
concerned search-result links to Web sites,
Clearinghouse can both amplify these findings
newsgroups, or blogs. The leading sender in
and tell us how often cease and desist or take-
this category was Star’s Edge International, a
down letters have a chilling effect, how often
psychological improvement and “planetary
they are resisted, and what factors contribute to
enlightenment” organization that offers a
the different outcomes.
self-discovery course called Avatar.137 Star’s
The first part of our study analyzed the letters Edge sent 32 take-down letters to Google in
on the Chilling Effects site for one full year, 2004, complaining that Avatar’s copyrighted
2004. Of the 332 letters in the database for lectures and course materials were posted by
that year,134 320 related to IP issues. The other participants in such online discussion groups as
12, which we eliminated from our analysis, “alt.clearing.avatar,” “nl.scientology,” and “alt.
concerned defamation or child pornography. religion.scientology.”
Likely Removed 1 2 12 2
Partially Removed 1 2 5 4
Undetermined 0 7185 9 3
Totals 17 13 86 37
A
t our request, Chilling Effects asked considerations, cited by seven interviewees, were
those depositors who had left contact fear, intimidation, and the emotional cost of
information if they would participate defying an IP owner.
in telephone interviews. Seventeen people
We thought that seven of the cease and desist
responded, and from late 2004 through early
or take-down letters stated weak copyright or
2005, we interviewed them in order to learn about
trademark claims. In another five cases, there
their knowledge of fair use, their reactions to the
were strong or at least reasonable fair use or First
cease and desist or take-down letters, the final
Amendment defenses. Another four interviewees
outcome of the controversies, and their feelings
had possible arguments against the claims in the
about the experience. Although our interviewees
letters. Only one clearly had a losing case.
represent a small sample, their experiences
illustrate a range of free expression conflicts. But despite the overall weakness of the claims
Twelve of them published commentary, news, or made in the letters, five recipients acquiesced.
other information – in five cases, critiquing the (All of them felt that had they chosen to fight,
individual or organization that complained of or been able to afford an attorney, they would
infringement. Three others ran small businesses; have had a better outcome.) One lost his case;
two ran fan sites. one settled; and two had their posting or link
removed by an ISP. Two others who were targets
Of the 17 controversies, seven involved
of take-down letters removed the challenged
copyright; seven involved trademark (including
material temporarily, and later were able to
disputes over a domain name); and three involved
reinstate it. In total, nine of the 17 had their
both. Ten of the interviewees were confronted
material suppressed, even though 12 of them had
with cease and desist letters; four were subject to
a strong or reasonable defense, or received letters
DMCA take-down notices; two were the targets
with dubious IP claims. Although the sample
of both; and one received an invoice for using “a
is too small and self-selected to be scientific,
substantial amount” of an article.
it shows a substantial chilling effect from both
Twelve were aware of fair use; five were not. cease and desist and take-down letters.
Of the 12 who knew about fair use, five had a
basically accurate understanding of the concept.
Six were partly accurate; only one was seriously
Weak Copyright or
off the mark. He said: “If something is in the Trademark Claims187
public domain, you can use it as long as you don’t
profit from it. If it is privately owned, you need
Protecting the Voice
The Cape Cod Voice, a fortnightly regional
to seek permission to use it for any purpose.”186
journal, received a cease and desist letter in June
Thirteen of our interviewees consulted 2002 from New York City’s Village Voice, asserting
lawyers, but only six retained them. Three of the both trademark infringement and dilution. The
lawyers worked pro bono; another was paid by letter concluded: “We hope to resolve this matter
a trade organization; and one managed to win amicably … Our previous experience with the
the case for the modest fee of $1,000. Of those Bloomington Voice, Dayton Voice and Tacoma
who did not retain lawyers, the most common Voice newspapers – each of which successfully
reason, not surprisingly, was cost – not only changed its name after our client raised trademark
legal fees, but the possibility of having to pay a infringement concerns with them – indicates that
judgment if they lost the case. Other significant we can accomplish this goal.”188
W
e posted our online survey, entitled What follows are some of the narratives;
“Copyright, Fair Use, and the in a few instances, we have supplemented the
Impact of Cease and Desist Letters,” survey responses with information from follow-
on our Web site from the fall of 2004 to spring up emails.236
2005.232 Organizations that encouraged their
members to fill out the survey included the
National Alliance for Media Arts and Culture, Gaelic Dreams and
the Association of Independent Video and
Filmmakers, Women Make Movies, the
Closeted Gay Artists
National Arts Journalism Project, National
• The nonprofit group Internet Infidels operates
Video Resources, Independent Feature Project,
both an online discussion forum and a site called
the Center for Arts and Culture, and the College
the “Secular Web” (“a drop of reason in a pool
Art Association. We received 290 completed
of confusion”).237 Among the contributions to
surveys, of which 58 described controversies,
the discussion forum is an “Answers in Genesis
and the remaining 232 gave opinions and
Cartoon Parody Contest,” which invites readers
comments about fair use and copyright.233
to send in parodies of the cartoon-style lessons
The largest category of respondents described in Creationism and other fundamentalist beliefs
themselves as professors or scholars (131). that are found on the “Answers in Genesis”
Visual artists were the second biggest category, (“AiG”) Web site.238 One parody of AiG’s
with 80. The great majority (263) had heard of “CreationWise” comic strip, for example – the
fair use as a defense to copyright or trademark Infidels’ “CreationDumbass” cartoon – shows a
infringement. 231 said they had relied on fair fundamentalist acknowledging: “I guess I should
use in deciding whether to borrow, reproduce, try reading something else [other than the Bible]
or quote from somebody else’s work. Of the for a change.”239
58 who had been involved in at least one
In January 2004, Infidels received a cease and
controversy, 14 said they were the owners
desist letter from AiG, asserting that both the
of IP-protected material; 40 said they were
“CreationWise” parody and another cartoon
borrowers; two said they were both; and two
called “After Eden” infringed AiG’s trademarks.
said they were neither. Only four reported that
The letter acknowledged that the cartoons were
a lawsuit had been filed.
parodies, but insisted that they were nevertheless
Twenty-three of the respondents said they “likely to cause confusion as to affiliation.”240
had received cease and desist letters; six said they
Jim Lippard, president of Internet Infidels,
received DMCA take-down notices. 17 of the
felt that AiG “had a legitimate, but exaggerated
23 who received cease and desist letters either
complaint.” The group responded by removing
acquiesced, partially acquiesced (for example,
all AiG trademarks, names of original artists,
negotiated a settlement), or learned that an
and copyright notices. The parodies themselves
ISP removed the item at issue.234 Among the
remained on the discussion site, with new ones
recipients of take-down notices, one said that he
appearing regularly.
acquiesced – although this was only temporary
– and one learned that an ISP took down the Lippard said that the chilling effect of the
material. Three did not acquiesce and one did cease and desist letter was “minimal, but could
not respond to the question.235 have been more significant.” His board discussed
W
hat can we learn from the fair use desist letter, although threatening, in itself has
research project? no coercive power. The same cannot be said for
DMCA take-down notices, which usually cause
First: artists, scholars, Web
the suppression of speech even before there is
publishers, and many others are aware of fair use
a chance to negotiate. By conditioning an ISP’s
and sometimes rely on it. But many have only
immunity from suit on compliance with a take-
a vague sense of what it means, or mistakenly
down notice, §512 of the DMCA creates very
believe that the law imposes numerical limits on
strong pressure to remove material merely on the
the amount of material they can borrow. There is
“good faith” representation that it is infringing.
an urgent need for accurate information.
As Google’s experience with Scientology reflects,
Second: prevailing practices in an industry §512 is a powerful tool for anyone seeking to
have a big effect on the ability to take advantage suppress criticism. We saw other examples
of fair use. At one extreme is the film world, of this phenomenon in the take-down letters
where a clearance culture and the need for E&O targeting the New York Times parody correction
insurance have nearly obliterated fair use. At page, Roger Loomis’s Mormon discussion site,
the other end of the spectrum are the students, and the Chick cartoons parodist. The fact that
Web activists, and artists who freely appropriate take-down letters greatly outnumber cease and
copyrighted or trademarked material for creative desist letters on the Chilling Effects site suggests
purposes. Clearly, more support for fair use and how pervasive the §512 procedure has become.
free expression is needed in the communities
Activists have risen to the challenge of
where these principles are most threatened.
defending fair use, with days of protest, massive
Third: whatever the precise percentage of downloads of important works, community
dubious cease and desist or take-down letters support networks, informational Web sites,
that are sent in any given year, substantial and pro bono legal assistance. These initiatives
numbers of them do state weak claims, or seek show that there is widespread support for fair
to suppress material with a strong or reasonable use and free expression, and discontent with
fair use or First Amendment defense. More overzealous IP enforcement efforts. But larger
than 20% of the letters in the Chilling Effects and more systematic approaches are also needed –
database for 2004 (67 letters out of 320) were in approaches that do not malign the importance of
this category, while another 27% – or 86 letters copyright and trademark, but that strike a proper
– had a possible fair use or First Amendment balance between IP ownership and users’ rights.
defense. The disconnect between prevailing law
What measures could help restore the
and the claims made in many cease and desist or
balance? Section 512 is bad legislation, but it is
take-down letters is striking.
not about to be repealed. One way to ameliorate
Finally, many recipients who do not acquiesce its effects is through better use of the counter-
in the demands of cease and desist letters are not notice provision in the law. Informational and
sued. The experiences of Attrition.org, the Piggy advocacy groups should explain the counter-
Bank of America, the Cape Cod Voice, and dozens notice procedure and work with ISPs to make
of others show that non-acquiescence is alive and sure that anyone whose online speech is targeted
well. But many other recipients acquiesce, and by a take-down letter is given adequate help in
the validity of their fair use or First Amendment preparing a counter-notice.
defenses are never tested.
One specific initiative would be to mount
The counter-argument, of course, is that a survey of ISPs to learn what their §512
many people would prefer to receive a cease procedures are; then propose standard notices
and desist letter, and settle the conflict, than for them to send to their users, which explain
be confronted with a lawsuit. And a cease and how to prepare a counter-notice and provide