NEASIST Copyright Program: Wendy Seltzer’s Presentation

Wendy Seltzer
Electronic Frontier Foundation
Harvard Law School’s Berkman Center for Internet & Society Fellow
Freedom vs. Control: Rights Management in the Digital Age
Wednesday, December 15, 2004

Chilling Effects Clearinghouse
Legal Tags

“Is it chilly in here?” Wendy Seltzer asks relative to copyright law.

The Electronic Frontier Foundation recently helped the creators of JibJab fight a suit against the estate of Woody Guthrie. They felt JibJab infringed on their rights to “This Land is Our Land.” The EFF found that Guthrie failed to renew the copyright on that song properly, so it’s in the public domain now.

The EFF also recently worked on a situation with an online game that used superheroes.

The gameshow Jeopardy! recently threatened a blogger who posted a transcript of a clip of a show. The Washington Post used that same transcript and did not receive the same notice from Jeopardy! The blogger and the EFF speculate that it might have something to do with The Washington Post’s access to lawyers–access the blogger doesn’t have. The EFF is interested in this situation.

The manufacturer of printer cartridges circumvented some copyrighted code of a competitor that allowed only certain brands of printer cartridges to work in the printer. Judges ruled that the DMCA didn’t apply to that situation when the copyright holder sued because the code didn’t count as intellectual property, which is the primary aim of the code. The judges thought the case had more to do with market shares and commerce than copyright issues.

The DMCA hampers research, poses challenges to preservation, and prohibits many behaviors that would otherwise be good behaviors.

ISPs and search engines have some protections against the DMCA. Google posts notices when they remove items from their database. They often send copies of the cease and desist letters to the Chilling Effects Clearinghouse, where they are available publicly.

The EFF got involved in the recent situation where Diebold went after some ISPs who were hosting sites with correspondence from Diebold about bugs in their electronic voting systems. Some students at Swarthmore were a little upset about Diebold’s actions and wanted to do something. The EFF found a clause (Section 512(f)) where they could sue Diebold for misrepresenting the situation because the posted e-mails weren’t going to harm their market. Diebold stopped sending their letters to ISP. The judge decided that Diebold was using the DMCA to try to stop embarassing information about the company from becoming public, not because posting the e-mails violated its copyright law.

The entertainment industry tried to get an inducing infringment clause. Who induces infringement? Apple for making the iPod where someone can store 20,000 songs? c|net for reviewing the iPod? The manufacturer of the technology? The result would be a chilling of technology. Any maker would stop to think about whether bringing a new product on the market would be worth the lawsuits. Journalists would stop reviewing products if they had to consult their legal department continuously.

The EFF is defending Morpheus, a software manufacturer. People are trying to hold Morpheus responsible for the infringements by software users. Morpheus is using the defense of the case about VCRs almost twenty years ago: VCR manufacturers can’t be liable for what their customers do with general purpose technology.

To work against the chill:

  • Work for academic freedom

  • Challenge the law
  • Report abuse to Chilling Effects
  • Join EFF

Q: I’m a professor. I want my students to be able to experiment with media (like music files and film) online. Is there some way to create a safe harbor for that so they don’t get in trouble with copyright holders?
A: Educational use is supposed to be favored. Visibility could be a factor. If you do certain things within the confines of the classroom where copyright holders won’t see it is probably safe. Moving works to the Internet makes them very visible. I can’t guarantee that your use would be fair or that someone wouldn’t sue.

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