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 COLUMN
Legitimate concerns vs. free speech: Who defines the rules for the Net ring? WE ARE USED to thinking of censorship as something governments do. But on the Internet of late, censorship appears to be more of a private enterprise.In the last two weeks, we've looked at AT&T@Home's termination of several different Internet accounts that belonged to Wesley and Digital Convergence's proprietary claims on its CueCat; both actions demonstrate the newfound power of big companies to enforce commercial censorship. Although different situations in many respects, @Home and Digital Convergence both successfully used the Digital Millennium Copyright Act (DMCA) to get their rather dubious intellectual property claims upheld.
A somewhat similar but even more disturbing situation I've heard about recently involves Sega of America and a Web site called Isonews. Isonews.com undeniably caters to the hacker crowd with news, message boards, and forum discussions about cracked games, but the nonprofit site is monitored by volunteers to remove any direct links to pirated software. Nonetheless, attorneys for Sega demanded, in a series of letters threatening legal action, that the site close down its forum on Sega's Dreamcast game console. Although convinced its site has no infringing material, Isonews.com has, for the time being, removed its Dreamcast forum. What would happen if Isonews, the CueCat owners, or Wesley found themselves in a court of law? Each would certainly have some reason for hope (assuming they had competent legal representation), because their protagonists appear to be stretching the bounds of intellectual property law beyond recognition. Sega seems to be saying that even talking about piracy is tantamount to infringement. Digital Convergence is trying to put retroactive usage restrictions on something you received unsolicited in the mail. And @Home's actions, particularly in getting Web sites on other services shut down, have some constitutional implications. On that last point, let me clarify that this is by no means a theoretical concern on my part. A year ago, another @Home user posted an "internal" @Home document on Webjump.com, one of the Web hosting services that Wesley used. And like the documents posted by Wesley that most upset @Home's counsel, it also was distributed to @Home's cable partners and was "not intended for the public." But the public, including some of us in the press, did see it. And it was a good thing, too, because that document revealed that @Home was instituting an "upload rate cap" and made it clear that they planned to keep the performance limitation a secret from cable modem customers. What if that document disappeared a few days after being posted due to a claim that it was @Home's intellectual property? The story of what @Home was doing and why -- a story that's important to know in the context of today's broadband choices -- would not have been fully told. We could take comfort if we were certain that Wesley -- and Isonews and the CueCat Linux users -- would all have their day in court. Then perhaps the free speech issues could be properly weighed against the very legitimate concerns companies have about the theft of their intellectual property on the Internet, and in the end we'd all have a better understanding of what the rules are. But I doubt that will happen. The court scenario is unlikely because the big companies have gotten what they wanted in these cases -- and without going to court, where they might well lose. The DMCA puts one very dangerous new weapon in the hands of corporate lawyers: the ability to get a supposed infringer's service provider to close a Web site or Internet account even with a highly dubious claim of intellectual property violations. The DMCA does provide for an appeals process and penalties for those who use it improperly, but a successful counterclaim is likely to require legal resources at least equal to the intellectual property owner's. In the meantime, having an account terminated can cause incalculable damage, so even the unstated threat of employing the DMCA is very powerful. One final, gloomy note: This is all happening without UCITA being the law in any of the relevant states. If you combine UCITA -- and its ability to enforce such things as shrinkwrap terms prohibiting product criticism and reverse engineering -- with the DMCA, what will we have? I fear it could be a form of censorship that will make the most despotic governments exceedingly envious. Got a complaint about how a vendor is treating you? Contact InfoWorld's reader advocate, Ed Foster , at gripe@infoworld.com.  RELATED SUBJECTS  Business NewsPortalsWeb TechnologiesDiscuss this article in our online forums MORE > SPONSORED WHITE PAPERS 
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