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net.wars: bent copyright

For a time in the late 1980s and early 1990s you hadn't arrived as a skeptic until you'd been sued by Uri Geller. The person who bore the brunt of most of the lawsuits was, of course, James Randi, the escape artist, stage magician, and paranormal investigator.

I never got beyond threats - yet. On the first occasion, it was when I wrote a news story for New Scientist about the Randi/Geller law suits. I seem to recall a lawyer's letter, but the details are hazy by now.

Geller's brother-in-law, Shipi Shtrang, also wrote to the magazine objecting to my work on ethical grounds, calling me a promoter for Randi. That was a little sticky until the editor realized Shtrang's connection to Geller. I am, of course, not now nor have ever been a promoter or publicist for Randi, though I admire much of his work.

The second time was the green room before a TV show on which Geller and I were both booked appearing. Practically Geller's first words to me were: "If you print lies about me in your magazine, I will sue you for a quarter of a million pounds." A researcher saw us and bustled over. "Everything all right?" he said. "Oh, yes," said Geller. "We're just having a friendly conversation." (That's his idea of friendly?)

Anyway, it was (I'm fairly sure about this, since I covered the story in detail at the time) the Scientologists who first hit on the idea of using intellectual property law against online critics.

The Church of Scientology has always claimed that its goal was not to stifle criticism but to protect its "trade secrets", as it called the L. Ron Hubbard writings that adherents study for many expensive hours. Whether the CoS's claim was true or not doesn't really matter. Copyright maximalism (as Pamela Samuelson calls it) is that it provides a legal structure people can use to stifle critics if that's what they want to do and that remains the core issue no matter what anyone's motives were in a particular case.

Fear of litigation is a powerful motive for self-censorship.

I hazard no guesses as to Geller's motives when he contacted YouTube, cited the Digital Millennium Copyright Act, claimed copyright in a 13-minute video critiquing his claims, and demanded the video's removal. But in doing so, he attracted the attention of the Electronic Frontier Foundation, which does not take DMCA takedowns lightly

The video itself was an excerpt from Secrets of the Psychics, which aired in the US in 1993 as part of the Public Broadcasting Service's Nova series. It was posted by "Brian Sapient", a member of a body called the Rational Response Squad, an activist group that, among other things, uploads debunking videos to YouTube. The EFF has now taken up their case.

The EFF, in its complaint (PDF) says that only three seconds (out of a little more than 13 minutes) of the video are in fact copyright to either Geller or his company, Explorologist Ltd. Geller, the EFF argues, should have known he did not own the copyright in the bulk of the video, and that by misrepresenting that ownership he violated "17 U.S.C. § 512(f)".

This section of the US Copyright Act states that any person who knowingly misrepresents that material is infringing will be liable for any damages. Sapient's account was suspended and all the videos he had uploaded were unavailable for more than two weeks.

The bigger issue, which the EFF also addresses, is whether three seconds is fair use. Under US law, you are allowed to copy small portions of copyrighted works for the purpose of criticism or parody. Ensuring the extension of those rights into the digital world is very much a big issue with EFF – and unlike a lot of skeptics EFF's array of in-house lawyers can afford to stick with the case. In fact, they must.

Also unlike the skeptics, the EFF may be able to prove its contentions. No skeptic will ever be able to prove that Geller has never bent a spoon paranormally; you cannot prove a negative. Or, as Randi likes to put it, if you drop 100 reindeer off the top of the Empire State Building and they all go splat you still haven't proven that reindeer can't fly. You have only proven that these reindeer either couldn't or chose not to fly on this occasion.

Geller used to say repeatedly that he didn't care what anyone said about him; he only cared that they spelled his name right. But in fact, as Geller's subsequent actions suggest he knows, all publicity is not good publicity. By straying into the copyright wars, Geller has made the questions about his abilities much more widely known than they would have been had he left the YouTube videos alone. Whether it's copyright infringement or a suit for defamation, as John Gilmore famously observed, "The Internet perceives censorship as damage, and routes around it."

Suing Geller for abuse of copyright law is like the Feds eventually prosecuting the mobster Al Capone for tax evasion: it's not really what you wanted. In a perfect world, the question of whether Geller actually has paranormal powers would have long since been resolved through scientific testing

But in the end, whether he has such powers or not, he is relatively insignificant. If he has a paranormal ability to affect metal, it seems to be largely useless for anything other than showmanship.

Shouldn't it have changed the world by now?