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Subject: FC: DMCA is a "copyright cudgel," from Chron. of Higher Education
From: Declan McCullagh <declan () well ! com>
Date: 2002-07-31 5:26:35
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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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