http://chronicle.com/free/v48/i47/47b00701.htm

Copyright as Cudgel By SIVA VAIDHYANATHAN

Let's pretend that a journal has just published your harshly negative review of a book in your field. In this review, you quote short passages from the book, confident that the long-accepted concept of "fair use"

enables you to make even unwelcome use of copyrighted material for purposes of criticism.

But a week or so after the electronic version of the review appears on the publication's Web site, the editors inform you that it violates the 1998 Digital Millennium Copyright Act, and that they are removing it. You are welcome to respond. You are free to argue that the use of the copyrighted quotes falls under fair use. But the publication is under no obligation to accept your defense. So you publish the review on your own Web page. But you soon discover that all of the major Web search engines have removed your site from their indexes.

That couldn't happen, you say? Welcome to the new millennium.

When Congress brought copyright law into the digital era, in 1998, some in academe were initially heartened by what they saw as compromises that, they hoped, would protect fair use for digital materials. Unfortunately, they were wrong. Recent actions by Congress and the federal courts -- and many more all-too-common acts of cowardice by publishers, colleges, developers of search engines, and other concerned parties -- have demonstrated that fair use, while not quite dead, is dying. And everyone who reads, writes, sings, does research, or teaches should be up in arms.

The real question is why so few people are complaining.

Consider the recent case of the Church of Scientology International and the search engine Google. The wealthy church used the threat of a well-financed lawsuit -- and the 1998 act's provision that a service provider will not be liable for infringement if it moves with "dispatch"

to delete offending material -- to persuade Google to block links to several sites that included criticism of Scientology. "Had we not removed these URL's, we would be subject to a claim for copyright infringement, regardless of its merits," Google said.

<Snip to be fair to his copyright>

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