First Amendment expert and email acquaintance of mine, [[Eugene Volokh]] is blogging about the Indymedia server seizure situation. As usual for Volokh, he has a detailed and insightful look at the real legal issues here.

See also: this post by [[Orin Kerr]], and this followup by Volokh.

[Update: our article about Volokh is a pretty disappointing stub. ]

On the plane from Newark to Amsterdam, I finally had a chance to readthe recent [[Online Policy Group]] v. [[Diebold]] decision. This decision is very good news for the freedom of speech on the Internet.

First, some background.

The much-reviled [[Digital Millennium Copyright Act]] actually has some very good provisions in it to protect internet service providers such as the Wikimedia Foundation. When users post content that is alleged to infringe copyright, there exists a procedure which must be used by copyright holders in order to enforce their legal rights.

Essentially, copyright holders have to make a proper DMCA-compliant request to the ISP, at which time the ISP has the option to either take down the content, or contact the user to get a DMCA-compliant statement to the contrary. If the ISP does this, then the ISP can not be held liable for copyright infringement.

The law also contains a previously little-known and little-used provision (section 512(f) designed to prevent copyright holders from abusing the procedure. As this decision explains it, the provision provides that “any person who sends a cease and desist letter with knowledge that claims of infringement are false may be liable for damages.”

What is interesting and important to us about this case is that Diebold was found to be in violation of 512(f) when they sent a DMCA takedown notice with respect to some material that the court found to be fair use. This case makes it more likely that copyright holders will not attempt to make invalid DMCA complaints about legitimate fair use on the web.

Fair use (and the narrower fair dealing) is an important freedom from abuse by copyright holders. It is good to see a decision which supports it.