Re: DMCA hearings and protests

On Thu, 25 May 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Wed, May 24, 2000, Dodi Schultz <schultz[_at_]compuserve.com> wrote:
> >
> > To suggest that an invasion of a private home by armed officers of
> > the law is equivalent to requiring a commercial operation to remove
> > text from a Website -- when the *author* claims copyright infringement,
> > not when an opponent objects to content -- is, in my opinion, and
> > putting it as politely as I can, without merit. This is not a civil
> > liberties issue. It is an intellectual property issue.
>
> Although my knowledge of the facts here is limited by the apparent
> immediate compliance under the DMCA by both the auction site and
> the auctioning party, it does seem to me that it is not an
> intellectual property issue that is at the heart of it, but rather
> a civil liberties issue. It may also be, as you term it, a sort
> of invasion and appropriation of private property -- if the
> auctioner cannot sell the article, some rights and use of property
> are being taken away from him.
>
> I also don't believe it makes any difference under the law as to
> whether it is a commercial operation or not -- the MPAA and RIAA
> claim damages against non-commercial websites.

My reading of the DMCA suggests if a person puts online a clearly Fair Use extract of someone else's document, for scholarship and commentary, and follows the accepted guidelines of Fair Use, but if the owner of the document complains to the ISP hosting the Fair Use extract that the use of said extract is a copyright infringement (even though a court would find it is not), the ISP will have to take it down.

This essentially leads to the situation where if the copyright owner does not like how the Fair Use extract is used, they can simply use the power of law to silence the user and thereby infringe on his/her Free Speech rights.

Imagine if this were done in the paper world, say a newspaper, book or scholarly journal article. Upon a simple complaint, without a court order, the hard copies would have to be recalled and withdrawn upon demand.

It doesn't take a rocket scientist to see that the "takedown on notice" requirement of the DMCA is a severe assault on the First Amendment. I believe it to be unconstitutional. And we have Scientology to thank for this, since the whole idea of the "takedown on notice" originated with the Scientology vs. Netcom case, where Scientology bullied Netcom to accept this requirement as part of a negotiated settlement, otherwise Scientology was going to litigate against Netcom in what they call "total war", where throwing $10 million against Netcom in legal fees means nothing to Scientology.

The role of Scientology in the recent copyright legislation (DMCA, Bono's copyright extension legislation, etc.) is much more than many realize, and would make for an interesting study.

Jon Noring
<noring[_at_]netcom.com> Received on Sat May 27 2000 - 13:30:28 GMT