Copyright -- or wrong?
The Church of Scientology takes up a new weapon -- the
Digital Millennium Copyright Act -- in its ongoing battle with
critics.
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By Janelle Brown
July 22, 1999--Susan Mullaney is not a fan of the Church of
Scientology. A longtime poster to the Usenet newsgroup
alt.religion.scientology, she spends much of her energy online
exposing what she feels are the Church of Scientology's repressive
activities. Her two-year-old Web site contains a library of short
audio excerpts from L. Ron Hubbard speeches and a "secret" Scientology
questionnaire, as well as her biting commentary about this material --
the usage of which she claims falls well within legal "fair use"
boundaries.
In March, Mullaney was informed by her Internet service provider,
Frontier GlobalCenter, that her Web site had been partially blocked,
due to a letter from the Church of Scientology that alleged she was
illegally using copyrighted materials. Thanks to the Digital
Millennium Copyright Act, which the Church of Scientology invoked in
this case, Frontier was required to block the Web site unless Mullaney
agreed to contest the charges in court. She did agree and filed the
paperwork, but still it took four months for Mullaney to have her Web
site reinstated.
Susan's tussle with the Church of Scientology is, in many ways, an old
story. In a war against what it calls the "cult of Scientology," the
online community of Scientology critics has long copied, distributed
and annotated hundreds of "top secret" and copyrighted documents from
the Church of Scientology -- usually invoking fair use laws, (which
allow publishers to excerpt copyrighted material for the purpose of
comment or criticism), to defend their actions. The Church of
Scientology has determinedly fought to dismantle the Web sites that
have republished its material all across the Net -- using legal
threats, filtering software and innumerable pro-Scientology posts in
Usenet groups.
It's one of the best-documented battles on the Net, but there is a new
weapon in these skirmishes, courtesy of the U.S. government: The
Digital Millennium Copyright Act, signed into law in November 1998, is
the first U.S. legislation to address online copyright protection.
Written in compliance with the global copyright protection treaty from
the World Intellectual Property Organization, the act prohibits the
unlawful use of any kind of copyrighted file online. Until this
legislation, online copyright laws were vague at best, but thanks to
this law, Internet service providers are now required to remove Web
sites that allegedly break copyright laws -- even before the copyright
infringement has been proven.
In the last six months, at least a half dozen critics of the Church of
Scientology have reported that the church has demanded that Internet
service providers disable their Web sites or reveal their identities
as anonymous Usenet posters, because of alleged copyright
infringements. And, they say that the Internet service providers have
carried out such demands without hesitation. The magic wand the Church
of Scientology is invoking to get such quick results? The Digital
Millennium Copyright Act.
As Frank Fields, an attorney for the Internet service provider
Frontier GlobalCenter puts it, "I have concerns that the Digital
Millennium Copyright Act provides another field of battle; I've been
engaged in these battles in the past. This is just another venue."
Next page | What's good for ISPs may not be so great for Web site
publishers
Susan Mullaney is just one of a number of Scientology critics who have
seen the barrel end of the act. One of the first was Marina Chong, an
Australian resident who had been hosting her Web site on Best, an
American ISP. In February, Best notified Chong that her site had been
removed after Bridge Publications, a subsidiary of the Church of
Scientology, complained that her Web site contained copyrighted ethics
texts. It was not the first complaint that Chong had received from the
Church of Scientology, but it was the first time her ISP was forced to
take down her site because of the Digital Millennium Copyright Act.
Best reinstated her Web site after the offending page had been
removed; Chong has since moved the site altogether.
"Because I am not a resident of the U.S.A. and because I have no
inclination to fight the case in court, I agreed to remove the page,"
Chong explained in February. "This legislation is a new weapon in the
Church of Scientology arsenal, and I am sure the Church of Scientology
will use it to close down as many sites as possible."
Mullaney and Chong are angry that they were presumed guilty until
proven innocent: Their Internet service providers removed their Web
sites before the Church of Scientology proved a copyright violation.
This, they complain, is thanks to the stringent guidelines of the
Digital Millennium Copyright Act.
"The law requires us to take down the alleged offending material --
this was the compromise Congress struck when they made this deal,"
explains Frank Fields, an attorney for Frontier GlobalCenter. This was
the "safe harbor" compromise that proponents of the act struck with
Internet service providers: The ISP can't be held liable for copyright
infringement as long as it takes down allegedly offending material as
soon as a complaint is filed. Says Fields, "Internet service
providers, in order to take advantage of safe harbor, have no other
choice to take down the site," until the customer has filed legal
papers agreeing to go to court to defend himself or herself.
But the act is, in many ways, a godsend for the ISPs -- especially
when it comes to the Church of Scientology. In the past, thanks to
murky copyright laws, an ISP could be held liable for its customers'
copyright infringements. At least twice, Internet service providers
were sued by (and eventually settled with) the Church of Scientology,
thanks to customers who posted chunks of Scientology texts on their
Web sites. So even while some Internet service providers may have
historically ignored complaints from the Church of Scientology, others
would quickly censor the sites in question in order to protect
themselves. The Digital Millennium Copyright Act now eliminates the
possibility of ignoring a letter of complaint, but it also gives the
Internet service provider exemption from liability.
Still, despite complaints about the way the Church of Scientology is
using the act, critics of Scientology also have an opportunity to use
the law to their own advantages. If a site owner files a
counter-notification agreeing to defend the usage of the "copyrighted"
materials in a court of law, then the Church of Scientology must begin
litigation within 10 days or the ISP must reinstate the site.
"The advantage for the customer with the material that gets taken down
is that the initial complaint is filed under penalty of perjury. So if
it's a bogus complaint, that person can also turn around and file a
complaint back," says James Lippard, a network security administrator
and owner of the site discord.org. Lippard was forced to remove a
picture of top Church of Scientology executive David Miscavige from
his Web site in June, when his ISP received a Church of Scientology
complaint. Although Lippard felt that he was in the clear legally
(technically, he says, the picture wasn't even on his server; he
merely linked to the image on the Church of Scientology's Web site via
a proxy), he chose not to enter into a legal fight with the church --
an endeavor he felt might be prohibitively expensive.
But other critics of Scientology have already chosen to defend
themselves. After her site was removed, for example, Mullaney filed a
counter-notification agreeing to defend her use of the sound files and
questionnaire. But the Church of Scientology failed to meet the 10-day
deadline to begin a legal battle; as a result, Mullaney's Web site was
reinstated on July 8.
Still, that doesn't mean that her Web site is safe -- although the
Church of Scientology apparently decided against litigation in this
round, both she and Frank Fields are concerned that there is nothing
to keep the Church of Scientology from filing repeated complaints. The
Digital Millennium Copyright Act, unfortunately, doesn't prevent
multiple complaints for the same alleged violation -- a loophole which
could, conceivably, spur an endless cycle of Web sites being blocked
and reinstated. As Fields puts it, "Without restraint, it could become
very problematic for all of us."
Next page | Does the copyright law simply open the door to
intimidation?
"The Digital Millennium Copyright Act gives legal teeth to a practice
that was already taking place," says Shari Steele, executive director
of the Electronic Frontier Foundation (EFF). The issue of Web site
censorship is a concern, she says, but she is more worried about
another way that the act is being used: to reveal the identities of
anonymous posters on Usenet newsgroups.
In June, the Church of Scientology subpoenaed AT&T Corp., invoking the
Digital Millennium Copyright Act to demand that it reveal the identity
of a WorldNet subscriber who was posting excerpts from "Introduction
to Scientology Ethics" on alt.religion.scientology under the pseudonym
"Safe." Faced with the law, AT&T quickly ponied up the user
information, an act that Steele says "the fourth amendment protects
against -- it's a misuse of the civil justice system for companies to
be [defeating] anonymous speech."
"Safe" -- who describes himself as a Free Zone Scientologist,
practicing the tenets of Scientology even as he vocally criticizes the
church online -- believes that the Church of Scientology simply wanted
to know who he was, and had no interest in copyright litigation. "The
Church of Scientology does not want its control over its members to be
found out by the public and it doesn't want its members to know that
they can get scientology outside of the Church of Scientology, "
"Safe" posited in an e-mail. "I have not heard anything from the
Church of Scientology's Bridge Publications since its subpoena to AT&T
to reveal my identity. No doubt this was an intimidation tactic to let
me know that they know who I am. I have to admit, even their silence
is intimidating."
Are his concerns an exaggeration? The Church of Scientology has a
history of confrontations with its critics -- including hiring private
investigators to investigate the backgrounds of reporters or picketing
their houses. Many of Scientology's online critics have attempted to
keep their identities private, fearing retribution. Says Mullaney,
"With the Digital Millennium Copyright Act, if anyone wants to fight
to keep their Web site up they have to give the Church of Scientology
their name and address in a counter -notification; you can't be
anonymous. Some people are wondering if the Church of Scientology is
just trying to 'out' people with this; there are plenty of reasons
that they don't want the Church of Scientology to know who they are.
They'll keep their pages down to avoid it."
But the speculation of the Scientology critics is, of course,
speculation. Helena Kobrin, a spokeswoman for Moxon & Kobrin, the
Church of Scientology's law firm, refused to discuss the specifics of
any of these cases, offering instead a statement that "just as other
copyright owners, we have used and will continue to use the Copyright
Act and the Digital Millennium Copyright Act as and when appropriate
to protect our clients' copyrights. In each instance we follow the
precise requirements of the applicable law. We review each situation
that arises individually and determine what is the most effective
means for dealing with the problem. In most instances a simple request
to remove the materials is enough."
Is the Digital Millennium Copyright a good copyright protection tool?
Certainly, it offers legal avenues for not just the Church of
Scientology but also for its critics. If the Church of Scientology can
indeed legally prove its copyrights, and uses this law to prevent
online theft, then it has every right to do so, just as all owners of
copyrights -- including artists, musicians, writers, and others --
hope to protect themselves from piracy and illegal distribution of
their work.
But, as Steele of the EFF explains, the Digital Millennium Copyright
Act leaves open too many questions and doesn't offer enough protection
to free speech and citizens' rights online. In fact, the Electronic
Frontiers Foundation opposed the Digital Millennium Copyright Act from
the start. "We thought that it went way overboard in adding protection
for copyright holders that hadn't existed before; there are many holes
in the legislation," sighs Steele.
So far, no Digital Millennium Copyright Act cases have been tried in
court, so it's still difficult to predict how the Church of
Scientology's use of the law will hold up. Kobrin says that the Church
of Scientology has "won judgments and obtained permanent injunctions
in five U.S. cases and two non-U.S. cases," but that was back before
the Digital Millennium Copyright Act was on the books. Now that
critics have a legal fallback as well, will they be able to more
easily defend their usage of Church materials? Perhaps, but that's a
decision that will have to be made in court. Meanwhile, Lippard hopes
that "eventually the Church of Scientology is going to meet someone
with the resources and time to fight back."
salon.com | July 22, 1999
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