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

From: Declan McCullagh (declanat_private)
Date: Tue Jul 30 2002 - 22:26:35 PDT

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    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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