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What Would You Do If You Received a “Cease and Desist” Letter?

March 14, 2006

By Starr, Jennie

An Interview with Wendy Seltzer of Chilling Effects

Searching the Net you may find yourself on Web sites that you never intended. Domain names are frequently confusingly similar. Is it intentional? Is it truly trademark or copyright infringement? When the site you land on is a mom-and-pop shop, are you really confused that it might be the larger company you were looking for? More importantly, does the big company really feel the tiny site owner is a threat? (Does Dun and Bradstreet really worry that people will get confused when entering http://www.dandb. com introduces users to the Michael and Jennifer Dost atArtPatron.com?) Not likely. Yet, every day, large companies threaten small mom-andpop operations with cease and desist letters. Are these legal actions just business strategy decisions to wield the law against those who simply don’t know better? Do big companies just dislike little guys using similar names? Threaten them with a cease and desist letter and maybe they’ll change it.

Most laypeople don’t have the means to hire a lawyer to defend themselves against such accusation nor the knowledge of the law or the resources to use it. In fact, just the arrival of the letter may spook simple Web citizens. In reaction, they may simply alter their behavior, remove the language from their site, or even change their company name and/or domain. A chilling effect, says Wendy Seltzer, who decided to do something about it. She created a free resource to educate people in this situation. Enter Chilling Effects. In the 3 years the site has been available; it has become an Internet fixture. Look up “Cease and Desist” in Wikipedia and you’ll find Chilling Effects as part of the definition, [http://en.wiki pedia.org/wiki/ Cease_and_desist]. Now Net users in such a pickle can find help easily, which is precisely what Wendy Seltzer was aiming for.

Wendy Seltzer, currently visiting assistant professor of law, Brooklyn Law School, and Fellow of the Berkman Center for Internet and Society, created the Chilling Effects Web site [http: / / www.chillingeffects.org]. Chilling Effects collects cease and desist letters from the public via the site. Students at the project’s team of law school clinics then annotate the letters with meaningful links to legal information that can help readers understand the legitimacy of the author’s claims. These annotated letters are then made available on the site in a searchable archive for the public to use to educate themselves regarding the laws governing online speech and in order to help defend themselves against a person or company attempting to stop their current activity on their Web site, blog, etc. Students in several law schools, under faculty overview, complete the annotations. The objective? Well, look at their slogan: “Monitoring the legal climate for internet activity.”

Visiting http://www.chillingeffects.org

The site is broken into several sections. A section to “Report receiving/sending a Cease and Desist Letter” provides a template asking the submitter to categorize the letter into one of 17 or so topics, including Trademark, Copyright, Defamation, and Patent law. “Topics” provides a description of each topic so that the layperson can properly categorize their questions or letters. A section called “Weather Reports” provides reports and relevant news submitted by the law schools. A “Search the database” page offers full-text and field searches, as well as a means to browse the various categories. An FAQ defines legal terms.

The site launched in 2002, but with the growth of the database and sufficient time to analyze its contents, things have begun to get interesting. For example, in November 2005, two members of the Chilling Effects team reported “a disturbing number of legal flaws in so-called ‘DMCA notices’ [Digital Millennium Copyright Act, section 512] -which result in online materials being pulled from the Internet, generally without notice to the target. [The researchers] studied a sample of nearly 900 notices collected by the Chilling Effects project, and discovered that a third of them demanded removal when the target had a clear legal defense.” An executive summary appears in the “Weather Reports” section with the full research paper due to appear in this month’s edition of the Santa Clara Computer and High Technology Law Journal.

I talked with Wendy about Chilling Effects, their progress to date, and how she hopes to use the information they learn in the future.

Who visits Chilling Effects and why do they come?

We are very privacy conscious, so we don’t watch where visitors are coming from or collect information about who is visiting the site to browse. But, we do hear from people who have received cease and desist letters, others who expect they will receive one, and still others who plan to do something they believe might get them into trouble. People who are just curious about how the law works use the FAQ as well. Researchers looking into how the DMCA is affecting speech, fair use, etc., use the database as a resource for their reports.

In addition, lawyers come to see if their own letters have made it on the site, and others use it essentially as a template library to get ideas for language for their own letters. We even see second- generation letters, those essentially copied word for word from existing letters in the database.

Do lawyers cite Chilling Effects in their cases?

The site is being cited in legal briefs. I’ve used it myself. Lawyers have cited specific letters as examples of how particular laws are being used. I also hear lawyers cautioning their clients to be careful of tone and the scope of claims if sending letters that may end up on the site.

Of the 17 categories of triggers listed on the site, which do you see most often? Any interesting trends?

We get data from several different sources, but by far the most letters come in under the Safe Harbor category, based on the DMCA. The next biggest category is trademark infringement, often claims that a domain name or text on a Web site infringes. We also receive letters from The Planet, a hosting company, and are in talks with other entities.

Of the uncategorized triggers, can you recall any surprising or unusual letters?

Some are weird things, like threats to the President. Occasionally, Google gets that kind ofthing in a discussion group and sends the removal notice to Chilling Effects. Occasionally we get people who submit more “rants” than cease and desist letters. In all cases, we try to review to make sure that the letter is not made up, but was genuinely sent. Some of the most amusing cease-and- desists are the threats from politicians: the Office of the Vice President complaining about a parody of Lynne Cheney or Texas Republicans complaining about “EnronOwnsTheGORcom.”

What percent of letters are marked private and not meant for inclusion in the database?

Users have privacy options when submitting letters. They can opt to leave their e-mail address, personal name, etc., private, but the content itself is almost always included.

What percent of the submissions come from a sender versus the party on the receiving end?

Most of the letters come from recipients rather than senders. We do get a big chunk of letters through Google, including all the notices they get from individuals demanding that Google remove sites from the Google search engine. Under the DMCA1 Google gets requests for removal from “information location tools,” one of the categories of Safe Harbor under the Act. Rather than removing results without a trace, they link over to chillingeffects.org and explain the link was removed pursuant to a Complaint received under the Act.

[To see an example, use this Google search for "Kazaa lite" - http:// www.google.com/search?hl=en&q= kazaa+lite&btnG=Google+Search.

The text of the Google explanation reads, "In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 4 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org."]

Give us a sense of the size of the database, how many submissions you’ve received and do receive on an ongoing basis.

We have about 1,600 notices total, a big chunk of these are copyright and trademark. You can see a breakdown of our notices at the following page on the site: http:/ / www. chillingeffects.org/ graph.cgi. We get one to five independent submissions per week. With Google’s submissions increasing more and more, we get nearly 20 a week from Google alone. Usually the submissions are via the Web form or e-mail.

How does the review after submission work? Do you make any content choices, editorial in nature? How do you determine which to include? And, what’s next in terms of content?

We scan the notices and do some processing to input them into the database in a structured format. Some paralegals help with the formatting. Then law students annotate the letter after receipt, with annotations to help explain the legal jargon that appears in the letters, such as what it means to “infringe a trademark,” what is “fair use.” Each of the clinics working with the site is responsible for one or more topic areas, so when the notice comes in, it goes to the appropriate clinic. All the information goes into a back-end system where it is then sent out to the administrator of the clinic. The administrator assigns the letters to students who bring the a\nnotated letter back to the faculty for approval.

Let’s talk about the search functionality on the site, e.g., browse versus search. Any plans to release a more robust browse option? Any plans to release full-text search? Any statistics on which is more heavily used? Any sense of how most people use the segment searching? How is the content indexed? Manual effort or all automated? A proprietary technology or off-the-shelf?

While the site could always improve, we don’t have any immediate plans for changes. There are two different search options. A simple text search searches all the major areas of the site (notices, news, FAQs, and other resources). A more structured search allows you to search notices by segment (such as sender, recipient, date) and to use Boolean operators.

Chilling Effects home page

Can you tell us a little bit about the technology you use? Was it developed in-house?

I’m a big believer in free software and open source. So, I built our system on open platforms (Perl, Apache, MySQL). It serves us well.

I’ve read some commentary that some feel there is a copyright infringement issue with reproducing the letters on the site and storing them in a database. Have you run into any criticism or threats associated with that?

We think that what Chilling Effects is doing is fair use. There is minimal copyright expression in a “cease and desist” letter, but, more important, even when there is an especially creative one, reproducing it for the purpose of helping people understand their rights is pretty clearly fair use. There have been people who have asked for their letters to be removed, but we generally explain what we are doing and explain we’re not going to. Often times the party doesn’t know how it landed in the database, because it was Google or others who submitted the letter. No one has sued Chilling Effects. Though we’ve had a few people suggest that they might, they haven’t followed up. I don’t think anyone really wants to tangle with seven law schools and the Electronic Frontier Foundation.

Are you considering partnering with a premium service to offer up slices of the database to a far-fee service? Are you the only database for “cease and desist” letters?

Not at this time. I wouldn’t be opposed to doing it though for the public text of the letters. We’d need to keep the remainder private.

Are there any new services or features on the way? Anything planned based on research reports? What drives new features?

We’d like to work with other recipients of letters, larger entities like ISPs or content hosts. So we’re always looking for others who might be interested in contributing. That way we can generate more data about how the letters are being used.

One of the goals from the start was helping end users understand their rights in response to these letters. Another goal is helping to create a countervailing force; now the lawyers know that their letters might get out into the public. The process is helping the law students see both sides of the debate. We’re also helping journalists gather evidence about how the law is being used, so they can write about how out-of-court law is shaping online expression. We’re looking at what the letters are doing by making claims about the law that almost never get into the courtroom. And yet many people’s notions about the law is shaped by the experience they have with these letters.

Take a look at the new study on the DMCA shown on the “Weather Reports” section of the site, a report by two Chilling Effects researchers, Jen Urban and Laura Quilter. Their study found that a large proportion of the notices studied missed the key requirements of the law and so are invalid take-down claims. Many more of them are used for purposes not at the core of what copyright law is meant to protect. Some people are using the law against competitors for business reasons rather than legitimate copyright infringement claims. Some are using it to get defamatory material taken offline. Search engine optimization companies have discovered the DMCA take- down process to get their competitors’ pages dropped down. The DMCA process is not suited for determining whether a use is infringement or fair use.

Tell us about your background, why you founded Chilling Effects?

I started working with the Berkman Center for Internet & Society while I was a law student. The Berkman Center is dedicated to understanding and supporting the open Internet – open source software, open education resources, open governance, open law. I was seeing Web sites shuttered without a chance to get legal advice; even when they would have had a reasonable defense: gripe sites using a trademark in their domain name or criticism; programmers explaining how to take apart an electronic device. I wanted to set something up where these people could get general information to assess the threats they were receiving. So many of these individuals with hobby projects don’t have the means to hire a lawyer to defend themselves. So Chilling Effects helps them understand whether the letter is reasonable or not.

What were some of the challenges in getting it off the ground? How do you feel about its evolution over the years?

It always takes a little longer than you expect at the beginning. But, actually I’m more surprised that the code is still running. Overall, it’s functioning very well. The site has a nice modular structure to it so each clinic can take on topic areas. The “Weather Report” section provides a way for students to write up higher- level analysis of things they see in the news. Anyone can write one; any of the administrators can approve it. I’d like to see that section become more bloglike so it comes out when people have something new to say and they can remain flexible about the types of material that is included there.

Do you have any partnerships planned? New university involvement?

We are open to interest from other schools, but we seem to have reached a good equilibrium right now. One thing we could do if there is more interest is break down categories into subcategories.

Where do you see Chilling Effects in 5 years?

I would like to use the information we’ve collected in research and to help others to understand how the law is being used. To see the patterns and to write them up for academic audiences, courts, and legislatures to show how laws and its interpretation are affecting online expression. In cases where the law is being misused and cease-and-desists are chilling lawful speech, we’ll be pushing for reform to bring the law back into balance.

In addition, lawyers come to see if their own letters have made it on the site, and others use it essentially as a template library to get ideas for language for their own letters.

Relevant URLs

bttp//cyber.law.harvard.edu/shelter.html

http://www.chillingeffects.org/

http://www.google.com/dtnca.html

http://www.google.com/ search?hl=en&q=kazaa+lite&btnG=Google+Search

http://www.chillingeffects.org/eraph.cgi

by Jennie Starr

Consultant

Jennie Starr [jennie@jenniestarr.com] is a consultant specializing in software product marketing and a freelance writer living in San Diego, Calif. She also edits KMTool [nttp:// www.kmtool. net], a knowledge management resource she launched in 1999.

Copyright Information Today, Inc. Mar 2006




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