Volume II

Issue : 21: November 4, 2004

• U.S. and Antigua Break Off Settlement Talks in Internet Gambling Dispute
• New U.S. Federal Appeals Court Ruling on DMCA and Printer Cartridge Chips
• Report Concludes Cease and Desist Letters Under DMCA Abused
• Employers Collection of Biometric Information Not Contravention of PIPEDA
• Ontario Court Decision Shows Potential Problems with Enforcing Non-Solicitation Covenants
• UK Courts Address Jurisdiction in Internet Libel Cases
• Austrian Supreme Court Awards Costs in ICANN UDRP Case
• Ontario Enacts New Health Privacy Legislation
• North Carolina Man Sentenced to Nine Years for Sending Spam

Home > Volume II > Issue 21: November 4, 2004 > Report Concludes Cease and Desist Letters Under DMCA Abused

Report Concludes Cease and Desist Letters Under DMCA Abused

A preliminary report on the so-called effects of "cease and desist" letters in the United States indicates that these letters are being sent to stop the borrowing of copyrighted material without permission where such use may fall within the exception of "fair use". "Fair use" allows certain individuals, including students, journalists and artists, to quote copyrighted material without permission if the material is being used within certain parameters such as commentary, parody or news reporting. The report further suggests that the letters make no mention of the possibility that the use of such material may fall within the fair use exception, thereby prompting those without knowledge of the defense of fair use to unnecessarily remove non-offending material off a website.

This report, entitled the "Chilling Effects", was a joint project executed by the Electronic Frontier Foundation and six law school clinical programs. A website (http://www.chillingeffects.org) serves as an information resource about the law concerning fair use, among other things. The website's depository contains approximately 800 cease and desist letters of which 131 were analyzed and 7 were used to formulate the report.

Many of the letters were not sent directly to those who borrowed the materials, but to Internet service providers ("ISPs") or search engines under the guise that the latter hosted the copyright-infringed material, thus contravening section 512 of the Digital Millenium Copyright Act ("DMCA") which provides that ISP's must remove copyrighted material alleged to be used without permission once they receive a "take-down" letter.

In some cases, the alleged wrongdoers fought back while in others, they simply removed the alleged offending material. Much depended on factors such as the recipient's knowledge of the defense of fair use and their willingness to take risks. The DMCA take-down letters were concluded to have more consistent "chilling effects" due to the fact that the law requires the ISP's to remove the material once the letter has been received without actual proof of copyright violation.

For the full report, visit:

http://www.fepproject.org/commentaries/ceaseanddesist.html