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.

Food for thought on the relationship between digital copyright and a functioning democracy:

Seth Finkelstein, arguing that the Induce Act (PDF) is to the Betamax doctrine as the DMCA is to fair use: "The Induce Act may preserve the 'substantial non-infringing use' standard of _Sony_, in the same way the DMCA preserved fair use: only as a very abstract theory, not in practice."

Dr. Karl-Friedrich Lenz, on reactions by Fox News President Roger Ailes and the New York Post to OutFoxed: "If you allow people to use news in a critical film, the journalists concerned will face the risk of criticism. Which is exactly what the right of fair use is there for.

If you can't live with the idea that people might criticise your work, you have no business to be a journalist in the first place. And if you try to abuse copyright to silence criticism, you deserve to be laughed out of court."

Korea Times article reminding us that not everyone has our conception of "fair use" to lose: "The court said in the ruling that everyone has the right to express their opinions by creating works, including parody works, but Shin's work passed a limit and tried to influence politics."

We talk a lot here about copyright as the 800-pound gorilla of the Internet, but there are other forces with considerable power to influence its development. One of these is the effort to control access to obscene material online -- to keep what a particular community considers "harmful" away from children. The problem is that on the Internet, no one knows you're a dog, and the server doesn't know you're a child living in a certain community -- unless, of course, it does.

Annalee Newitz has a new post over @ Deep Links pointing out that a ruling in the Nitke v. Ashcroft case that upholds the constitutionality of the contested provisions in the Communications Decency Act (CDA) could lead to what Jonathan Zittrain calls a "zoned" Internet -- one in which an adult would be forced to give up her anonymity in order to access online materials that someone (or some software) considers obscene:

[The Miller test] made sense in the 1970s, when obscene materials were usually books, mail, or magazines -- all of which could be located in a specific geographical region with distinct community standards. But when the CDA proposes to use this same rubric to judge obscenity online, things get a little sticky. What, after all, is a "community" on the Internet? How can a speaker be held liable for disseminating obscene materials when she has no idea who is accessing her website or archive online?

[...]

Experts testifying on behalf of the government have argued that community standards can be maintained on the Internet through the pervasive use of geolocation software. Seth Finkelstein has argued on behalf of the plaintiffs that implementing such software is cost-prohibitive and that the software itself is inaccurate. But we may nevertheless be facing a future where we are forced to reveal where we live in order to access websites with content that could be interpreted as obscene in some communities.

As Annalee points out, the Nitke case is about much more than obscenity -- it's about the future of anonymity on the Internet. We'll have a ruling in a few months from a federal court in New York City, but whatever the outcome, both sides will likely push for a Supreme Court showdown. Let's hope that the Court preserves the right to anonymous free speech and keeps decision-making about blocking potentially "obscene" materials in the home rather than the server or ISP.

CNN:"The Bush campaign is demanding that the Kerry-Edwards campaign release video of a fundraising event in New York; apparently several celebrities in attendance made off-color anti-Bush jokes on camera. Kerry's camp is refusing, citing the possibility that distributing the footage might constitute a violation of copyright law.

"[Bush campaign manager Ken] Mehlman pledged that the president's campaign would not use the footage. He also said that rules allowing 'fair use' of newsworthy copyrighted material would allow its release for use by the media."

Hrmm...the President seems to have changed his mind about fair use since the days when his budding campaign sent a cease-and-desist letter to the satirical website GWBush.com, memorably argung that "there ought to be limits to freedom."

Larry Lessig has a must-read post that touches upon on a topic many of us been discussing of late: strategies for preserving fair use.

The story so far: film maker Robert Greenwald has been making a political documentary about Fox News -- you know, the news organization that brought us that especially ill-advised trademark lawsuit against Al Franken. Greenwald, who uses numerous clips from Fox News in order to criticize its reporting, was more than a little concerned that the company would take a similar stance toward his film. Larry and the good folks at Stanford's Center for Internet & Society joined Fenwick & West in offering him pro bono legal advice in order to ensure that the film would be completed. Now, Robert Boynton -- the gentleman who brought us the excellent NYT Magazine article, The Tyranny of Copyright -- has published the equally excellent How to Make a Guerilla Documentary, detailing precisely how hard that row has been to hoe.

Where will the story go next? Despite early indications to the contrary, there's a possibility that Fox will still sue.

Larry's post subtly suggests that a lawsuit might not be such a bad result. "As with news-gathering, critical political filmmaking needs a buffer zone of protection against the overreaching of the law. And if the potential of this medium -- now liberated by digital technology -- is to be realized, we need clear precedents that establish that critics have the freedom to criticize without having to hire a lawyer first."

In other words, if Fox sues, a court would have the opportunity to create meaningful breathing space for this kind of speech -- buttressing the (fragile) fair-use defense of future Robert Greenwalds/Michael Moores.

The unstoppable Ernest Miller has already posted a response that takes the thinking a step further. "[Why] use copyright law if there are other means to prevent the making of these sorts of films?" he asks, pointing out that with the broadcast flag mandate in force, "using such clips [would be] significantly more difficult (and expensive)." On the other hand, if a film does get made, there are plenty of avenues for distribution that bypass the traditional points of control -- e.g., "broadcatching." The law is only one front in the battle for fair use.

Where does this leave the average copyfighter looking to support fair use and the freedoms it allows? Two suggestions:

• Forward and/or link to Boynton's piece. It's one of the better articles for articulating the connection between fair use, the First Amendment, and a functioning democracy.
  
• As Larry advises, see the film. Encourage others to see it. If more of us don't practice/experience/celebrate our "particularly American" freedoms, we won't notice when they finally slip out of our grasp.
  

Think you know naughty talk when you hear it? Take the Indecency IQ Test and see if you can match wits with Ernie about how the FCC's indecency rule is interpreted and enforced.

Snippet (hyperlink, mine):

The FCC will slam me for cussing in Czech.

1. ? True
2. ? False

#
One of the infamous Seven Dirty Words has now become so accepted and commonplace in our language that it has been taken off the list.

1. ? True
2. ? False