In theory, copyright protection should be straightforward: Writers and other creators are entitled to exclusive control over their intellectual property. But two Boalt graduates say in a new study published in Santa Clara Computer and High Technology Law Journal that digital-age battles over intellectual property rights are sometimes neither simple nor straightforward.
Consider this gray area: You finish reading a new novel and decide to critique it on your blog. You include snippets of text from the book and an image of the book’s cover. Your review is not exactly glowing. A few days later, the page has disappeared and you have no idea why—you didn’t receive any notice from the site hosting your blog or from the novelist.
According to the study’s authors, Laura Quilter, J.D. ’03, a fellow at Boalt, and Jennifer Urban, J.D. ’00, who now teaches at USC, this is not uncommon. They examined nearly 900 notices demanding that Web content be removed. Under the 1998 Digital Millennium Copyright Act, these notices are sent to the relevant online service providers, who must comply or risk legal action. They found that 30 percent of notices that demanded takedown were legally questionable. These included complaints about material such as recipes and golf handicaps, which can’t be copyrighted, and uses of copyrighted material that fall into the realm of allowable fair use, such as including text from a novel in a review. The pair also discovered that 57 percent of notices regarding indexing in Google "were sent by businesses targeting apparent competitors."
Quilter says copyright owners "are given a tremendous amount of power, even if they don’t completely understand their own rights and the rights of other people." Because there is no organized policing of Cyberspace, she says, copyright owners can often issue what amounts to "a temporary restraining order or even a permanent injunction on what could be First Amendment-protected speech." She hopes the study will inform debates about protecting free expression as new technologies emerge.