7.12 The cease and desist game
US District Judge Stewart Dalzell has called the internet ‘the most participatory form of mass speech yet developed’. Lessig thinks the architecture is evolving to change that, although he hopes First Amendment – free speech – values can be protected in the process. (We have seen in The Future of Ideas his pessimism about the potential of the Net to survive as an innovation commons.) In the meantime, how does someone deal with material posted on the internet that they may not like?
The most common approach, for those who can afford it, is to engage a lawyer to send a ‘cease and desist’ letter. The Net is viewed by many as a phenomenal ‘liberating’ force, but one of the lessons of the last few years is that law or the threat of legal action is extremely powerful. Most people want to obey the law, if only because they don't want to suffer the consequences of not doing so. This applies to online as well as offline behaviour.
The most common targets of these letters are website owners and ISPs. A letter will typically accuse the recipient of copyright or trademark infringement or of publishing defamatory/obscene/hate material and demand that they ‘cease and desist’ from such action immediately (i.e. remove the offending material or the entire website). Most people comply with the request because they fear the consequences of not doing so and don't have the resources to get involved in a court case. Some comply because they had not realised their site was illegal. Most of the cases don't get reported. Here are some illustrations that were.
HP and the security researchers
Harry Potter fans fall out with Warner Brothers
Did you know ‘bake off’ is a trademark?
Barney's cease and desist lawyers
Detailed EFF response to Barney's lawyer's threats
Laurence Godfrey has been vilified by cyber-libertarians for taking legal action for defamation against Demon. He pursued a legal remedy because defamatory material about him was distributed on the Net. In the UK the law was on his side: Demon were liable because he had formally asked them to remove the offending material and they failed to do so.
The Godfrey case starkly illustrates how important the role of ISPs will be, as regulators try to get to grips with controlling the internet. ISPs, as the gateways to the Net for most people, could be as important as applications architecture in regulating the Net.
The following Observer article illustrates the issue in relation to speech:
The site offends? We'll pluck it out
The strategy of targeting ISPs to protect intellectual property also extends to questions of privacy, obscene or hate material, and efforts to track criminals on the Net. Not only can litigators target ISPs, so also can regulators. Regulators could conscript ISPs to help implement, for example, the EU's Copyright Directive 2001. The FBI already install DCS1000 (Carnivore) devices at ISPs to monitor emails. The Regulation of Investigatory Powers Act 2000 allows UK law enforcement authorities to do likewise, although the practice is not, at the time of writing, as advanced as in the US.
Businesses have a legal duty to their shareholders to make money and they don't do that by running up unnecessary legal fees. So if an ISP is threatened with a lawsuit unless it closes down a website which is alleged to be violating copyright, the chances are it will shut the site down. It is cheaper than spending money on lawyers defending the case, even if it is likely to win. The law can be a powerful force in controlling the internet. ISPs, which provide the entry route for most people, could be one of the most effective groups for facilitating that control.
Further reading: Harvard's Berkman Center for Internet and Society, the EFF, the Boalt Hall Samuelson Center and Stanford's Center for Internet and Society run a chilling effects clearinghouse, which collects what they consider to be pernicious examples of cease and desist letters.
The latest large-scale cease and desist story is the case of DirectTV. The company has sent out hundreds of thousands of cease and desist letters and filed about 9000 lawsuits against people they allege to be intercepting its satellite signal. The EFF and Stanford Centre for Internet and Society have set up a website about it at www.directvdefense.org.