Dow v. Thing

A Free-Speech Infringement That's Worse Than Censorship

The DMCA seems set up to encourage exactly the sort of policing done in this case by Verio. The law has a safe-harbor provision that says an ISP isn't liable for the infringing behavior of its customers—as long as the ISP responds quickly when a copyright holder claims its rights are being violated. And who wants to leave the safe harbor to become a test case? Last year the Church of Scientology was able to force the search engine Google to block links to Web sites critical of the church, claiming copyright infringement.

"Censorship is changing to include some of these intellectual property issues," says Wendy Seltzer, a staff attorney with the Electronic Frontier Foundation and founder of Chillingeffects.org, a clearinghouse related to online rights. "Copyright is now being used as a tool of censorship. Trademark. A lot of what we see at Chilling Effects is people using the intellectual property laws as a cudgel to shut down speech they dislike."

Seltzer points out that there is now a "strange difference" between intellectual property law and defamation law. "Service providers are absolutely immune from liability for defamatory content posted by people using their servers," she says. "We allow them to look the other way while people post their message boards. There we recognize the importance of preserving a free space for speech and commentary, yet as soon as somebody throws a copyright allegation into the mix we seem to be giving the service providers more responsibility to police."

Thing.net founder Wolfgang Staehle: The Internet exists "to make the world safe for corporations and e-commerce."
photo: Robin Holland
Thing.net founder Wolfgang Staehle: The Internet exists "to make the world safe for corporations and e-commerce."

Everyone has the crucial right not to be misrepresented, but for individuals that is rarely a copyright issue. This seems to be another example of corporate rights growing and individual rights shrinking. The DMCA is a new law (passed in 1998), and it needs fine-tuning. Unfortunately, the climate for that couldn't be worse. As George W. Bush famously remarked when he found out about RTMark's GWBush.com: "There ought to be limits to freedom."

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