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Standing up against legal threats

by Giles Turnbull -- 2002/03/19

Small-time web publishers, fanzine writers, and webloggers have had little or no chance of standing up against The Man when sent a legal letter or email asking them to "cease and desist" with whatever it is they are publishing online. Not until now, that is, thanks to the arrival of Chilling Effects.

This site has recently been set up to provide some degree of defence for ordinary people like you and me, who suddenly find we have upset some big global corporation with our web pages.

WriteTheWeb asked Wendy Seltzer, a Fellow at the Berkman Center for Internet and Society at Harvard Law School, and one of the team behind Chilling Effects, to explain more about the project.

WriteTheWeb: What brought about the Chilling Effects site?

Wendy Seltzer: The project arose from discussions around the Berkman Center and with the Electronic Frontier Foundation, as we became concerned at how often we were seeing news of "Cease and Desist" letters on the Net.

Many of their threats exaggerated or misrepresented the law, and we thought a database collecting and analyzing those letters could help the "little guys" resist the unfounded threats. We will also use the database to examine the scope of the "chill," to analyze whether new laws such as the U.S. Anticybersquatting Act and Digital Millennium Copyright Act are striking the right balance between free expression and commerce.

WtW: The name sums up nicely the feeling that many webmasters must have when they get a threatening legal letter. Is there a specific audience in mind? - Is the site aimed at kids posting pictures of pop stars on Geocities pages, or at people engaged in legitimate online publishing - or at everyone?

WS: The site is aimed at everyone, but it is focused primarily at the individuals and nonprofits using the Internet in creative ways who might just pull their sites off the 'Net before thinking to contact a lawyer. There's a range of "legitimate online publishing" going on, and one of the Berkman Center's longstanding goals has been to foster that public activity in all its diversity -- from the kid creating her first hobby page, to the weblogger presenting his take on the day's news, to the established newspaper putting its articles online in parallel with its print edition.

Since the smaller authors and publishers are more likely to be chilled by legal threats, the Chilling Effects site aims first and foremost to speak to them.

WtW: What's more important - educating webmasters so they don't incur the wrath of legal departments quite so often, or acting as a representative of webmasters so that legal departments might hesitate, or reconsider their approaches, in future?

WS: Both are important, but there are plenty of sites that will counsel Web publishers to limit their activities, even to the point of avoiding lawful activity because it might anger someone with a legal department.

Chilling Effects aims to separate the threat from the law -- to help people distinguish between fair use and copyright infringement, between product criticism and trademark dilution. We hope that the project will serve as a resource for those engaging in First Amendment protected speech and that it will discourage others from legal bullying.