Chilling Effects and

As David posted, celebrity gossip site has battled ISP takedown over claimed copyright infringement. A key problem, the Houston Chronicle reports, is that site-owner Mario Lavanderia is already disputing those claims in federal court, where a judge refused to grant an injunction. Instead, as the judicial process properly works, Lavanderia must be proven a likely infringer before his speech is silenced.

The DMCA, however, offers copyright claimants an easy route around the niceties of judicial process -- make it too much of a nuisance for an ISP to deal with an accused infringer as a client, and get his site removed. And this underscores the precarious nature of our reliance on private infrastructure. Even though the DMCA insulates ISPs from liability once they've received counter-notification, copyright claimants can still shower them with complaints, and ISPs are still free to bow to risk aversion and refuse to do business with challenging customers. Those who challenge powerful copyright interests find themselves without practical ways to speak, even while they assert their legal rights.

From the Houston Chronicle:

Los Angeles photo agency X17 Inc. sued Lavandeira in federal court last year, asking for $7.6 million in damages. The suit claimed Hilton used 51 photographs without permission, payment or credit, including images of a pregnant Katie Holmes, Kevin Federline pumping gas and Britney Spears.

A federal judge denied the company's motion for an injunction against the site, although the lawsuit continues, as does another filed on behalf of several other photo agencies. A lawsuit filed by Universal Studios claiming the site posted a stolen photo of Jennifer Aniston from the film "The Break-Up" is also pending.

X17 co-owner Brandy Navarre said the company has sent more than a dozen notices to the Australian Web hosting company Crucial Paradigm in the past two weeks, demanding that copies of copyrighted photos on the site be removed. "They quickly realized it wasn't worth taking on this liability just to host this one client who was a repeat infringer," Navarre said Thursday.

Tuesday, Crucial Paradigm sent a strongly worded letter to the company that represents Lavandeira, saying it had received numerous complaints of copyright violations and warning that one more complaint would result in the site being taken offline.

"Please note that with any other provider this would have been done a long time ago, and moving your site to another provider will not solve this issue," the letter read. "Continued abuse is leaving us more liable each day, which we can't afford." appears to have found a new host in short order, but other critics with fewer resources often find themselves chilled well short of any judicial decision on the merits of their defenses.


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