Copyrights/Fair Use

BNA's Patent Trademark & Copyright Journal - Study Concludes Cease-and-Desist Letters

BNA's Patent Trademark & Copyright Journal
Volume 68 Number 1693
Friday, October 29, 2004 Page 729
ISSN 1522-4325
News

Copyrights/Fair Use
Study Concludes Cease-and-Desist Letters
May Have Chilling Effect on Fair Use


Use of cease-and-desist letters by copyright owners may have a chilling effect on what otherwise might have amounted to constitutionally protected fair use speech, according to the preliminary conclusions of a study of fair use by an organization that investigates censorship issues.
The "Preliminary Report on the Chilling Effects of 'Cease and Desist' Letters" concludes that legitimate fair use may be chilled in some cases, but not in all cases.

The preliminary report was released Oct. 5 by the Free Expression Policy Project, a research organization based at New York University School of Law's Brennan Center for Justice. It was authored by Tricia Beckles, a Brennan Center research associate, and Marjorie Heins, a fellow at the center and founder of the Free Expression Policy Project.

The authors conclude that there are certain factors that help to predict whether a cease-and-desist letter will have a chilling effect. These include whether the recipient of such a letter is aware of fair use rights, whether the recipient has access to support in enforcing his or her fair use rights, and whether the recipient is inclined to avoid risk.

In preparing the preliminary report, the authors examined 130 cases in a database assembled by the Chilling Effects Clearinghouse, which is maintained by the Electronic Frontier Foundation in cooperation with six law school clinics. The cases collected for the Fair Use Project dated from January to May 2004. Seven of these were selected for the purposes of the preliminary conclusions.

The cases involved letters sent by the New York Times, Mir Internet Marketing (a software developer), eBay, CBS television, Pet Friendly Inc. (a pet products maker), Waathiq & Associates (an investment firm), and Chick Publications Inc. (a publisher of fundamentalist Christian-oriented comics). In the Times and Chick cases, the allegedly infringing works were arguably parodies. The CBS case involved fan fiction. The Waathiq case involved allegedly defamatory criticism.

In several cases, the cease-and-desist letters were sent to the Internet service provider hosting the Web site that displayed the allegedly infringing content, according to the preliminary report. The authors concluded that in such cases, when the letters are sent under the aegis of the Digital Millennium Copyright Act, there is a higher likelihood that legitimate fair use will be chilled.

The preliminary report notes that the Fair Use Project will continue to examine the matter.

The Free Expression Policy Project conducts research in censorship areas, including those implicated by copyright protection.

Text of the "Preliminary Report on the Chilling Effects of 'Cease and Desist' Letters" and other information about the Fair Use Project are available at the Web site of the Free Expression Policy Project, http://www.fepproject.org.

The database of cease-and-desist letters is available at the Web site of the Chilling Effects Clearinghouse, http://www.chillingeffects.org.