No Downtime for Free Speech

Whether you are quoting someone on your blog, inserting clips of CNN into your own video news report, or using a song sample in a musical parody, your free speech often depends on incorporating and referencing other people's creations as part of your own. The courts call this "fair use" and strong legal precedents exist to protect the limited use of copyrighted material in your work when you do so for expressive purposes.

Unfortunately, copyright owners often object to these uses and may look for ways to take them offline via the legal system. A copyright cease-and-desist letter to your webhost or ISP may be all it takes to make your online speech disappear from the Internet — even when the legal claims are transparently bogus.

In particular, copyright claimants are increasingly misusing the Digital Millennium Copyright Act (DMCA) to demand that material be immediately taken down without providing any proof of infringement. Service providers fearful of monetary damages and legal hassles often comply with these requests without double-checking them despite the cost to free speech and individual rights.

The DMCA also puts anonymous speech in jeopardy; by misusing its subpoena power, copyright holders can attempt to unmask an Internet user's identity based on a mere allegation of infringement without filing an actual lawsuit or providing the user any constitutional due process.

And it's not just copyright law that gets misused. Trademark owners can also use their rights to censor critics online by claiming that any domain name or website referencing their product is an infringement. Yet the First Amendment protects commentary and criticism using trademarks as well.

Unless IP claimants are held accountable when they go too far, the situation for online speech will only get worse. EFF has been fighting to make sure copyright and trademark rights don't trump free speech by litigating against inappropriate uses of the law.

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