Legal protection turns Net providers into speech police

Tuesday, April 23, 2002

NEW YORK -- A 1998 federal law meant to combat digital piracy is increasingly being used to challenge free speech online as well.

In one recent case, the search engine Google removed links to a Norwegian site that criticizes the Church of Scientology International after the organization complained of copyright violations.

Free-speech advocates worry that the Digital Millennium Copyright Act effectively gives powerful copyright holders the ability to push parodies, criticisms and unpopular viewpoints to the fringes or off the Internet completely.

By law, Internet services like Google have no obligation to actively monitor and police their networks for copyright violations. But they must promptly take down any items upon notice from a copyright holder -- or lose immunity protection from copyright lawsuits.

"The notice and takedown provision is ripe for abuse," said Siva Vaidhyanathan, a University of Wisconsin professor critical of modern copyright laws. "It gives the accused no real due process."

Andreas Heldal-Lund, who runs the Scientology criticism site in question, says the effect is to strip the Internet of its value as a democratic medium where the strong and the meek can be equally heard.

Scientology lawyer Helena Kobrin insists the organization is trying to protect intellectual property -- not silence critics. She said Heldal-Lund's site, "Operation Clambake," made available substantial excerpts of copyrighted writings.

Heldal-Lund ignored repeated requests to stop, leaving the organization with no other recourse, Kobrin said.

The organization won several copyright lawsuits in the past to stop publication of its materials offline and online. It was a different case involving Scientology and online postings that helped persuade Congress to give Internet service providers immunity in the 1998 law.

"If we do not follow this framework, we risk being sued ... regardless of the merits of such a suit," Google said in a statement.

After the dispute became public, Google restored a link to the criticism site's home page but not inner links where criticisms and excerpts appear.

A challenge

Danny Sullivan, editor of Search Engine Watch online newsletter, worries that others may get the idea that they, too, could use the DMCA law to silence critics.

Already, rival search engine Ask Jeeves saw a jump in removal requests "from virtually zero to getting a few" in recent weeks, said Sharon Anolik, the site's associate general counsel.

"It is a challenge for us to maintain our credibility and not engage in censorship, but to also comply" with the law, she said.

Even if silencing critics is not the intent, free-speech proponents believe the clause has that effect because it pressures service providers to remove materials and links without waiting for courts to determine whether such usage is permitted as "fair use."

And because few challenges are mounted, such temporary removals tend to become permanent.

Heldal-Lund, who considers his criticisms a permissible fair use, isn't fighting the Google decision because he doesn't want to consent to U.S. laws as a Norwegian citizen. Others lack the knowledge, time and money to fight.

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