Copyright -- or wrong?

The Church of Scientology takes up a new weapon -- the Digital Millennium Copyright Act -- in its ongoing battle with critics.

- - - - - - - - - - - - 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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Janelle Brown is a correspondent for Salon Technology.

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