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Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Copyright Takedown Experiment Reveals Horrible ISP Policies | Main | Too Much, Too Little, Just Right »

October 19, 2004

How Do C&Ds Affect Fair Use?

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The Free Expression Policy Project (FEPP) wanted to know what effect cease-and-desist notices like the ones to which Jason refers are actually having on fair use. So the organization took a look at 131 such notices compiled by the Chilling Effects Clearinghouse, then culled seven for further investigation. The findings? Whether you fight or fold depends on the circumstances.


Even based on this small number of examples, we can infer that cease and desist letters sometimes -- but not always -- have chilling effects on speech that might qualify as fair use. Critical factors in determining whether the recipient of such a letter will comply seem to include awareness that fair use provides a defense; support from the community; and a non-risk-averse temperament.

DMCA take-down letters seem more likely to have consistent chilling effects. This is because the law requires the ISP to remove the material once the letter (if it's in proper form) has been received, without actual proof of a copyright violation, and then puts the onus on the Web speaker to assert his or her rights.


FEPP is careful with qualifiers, as well it should be; this is an awfully small number of cases, and people who submit C&Ds to Chilling Effects are likely to be clueful types ready and willing to fight back. But I'm less interested in whether or not the report consitutes "proof" of how often legitimate expression is being chilled than I am in what it reveals about what works -- that is, what people need to be empowered in the face of intimidating legal threats.

Check out the report in full; it's relatively short, and the seven "case" studies make for illuminating reading about the state of speech online.

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