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Legal Scholarship Using Chilling Effects

Wendy Seltzer, December 21, 2010

Abstract: More than two dozen scholarly articles cite data from Chilling Effects. Thanks to the project's open data, most of these scholars never contacted -- and they didn't have to. We're thrilled to see the data used so widely, and hope to see even more examples as the Chilling Effects database grows.

Here, in alphabetical order, are the citations we've compiled so far:

Derek E. Bambauer, Cybersieves, 59 Duke L.J. 377, 401 (2009) (citing takedown notice posted on Chilling Effects as support for argument that the DMCA provides public accountability)

Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. Pa. L. Rev. 549, 579-80 (2008) (citing Chilling Effects data to argue that copyright owners tend to aggressively assert their copyrights and benefit from the “chilling effects” of being aggressive litigants)

Deven R. Desai & Sandra L. Rierson, Confronting the Genericism Conundrum, 28 Cardozo L. Rev. 1789, 1840 (2007) (using Chilling Effects data to argue that trademark holders threaten to sue in cases which would be “demonstrably frivolous”)

Niva Elkin-Koren, Making Technology Visible: Liability of Internet Service Providers for Peer-to-Peer Traffic, 9 N.Y.U. J. Legis. & Pub. Pol’y 15, 34-35 (2005-06) (using Chilling Effects data to argue that the DMCA’s private enforcement regime leads to over-compliance by ISPs and over-enforcement of copyrights)

William W. Fisher III, The Implications for Law of User Innovation, 94 Minn. L. Rev. 1417, 1440 n.115 (2010) (citing Chilling Effects database to argue that some content owners “seem uninterested in license fees” and seek to prevent others from making any modifications to their works)

Michael Grynberg, Trademark Litigation as Consumer Conflict, 83 N.Y.U. L. Rev. 60, 96 (2008) (citing Chilling Effects data to argue that expansive trademark claims have a “chilling effect on those who would use trademarks for purposes other than source identification”)

Charles W. Hazelwood, Jr., Fair Use and the Takedown/Put Back Provisions of the Digital Millennium Copyright Act, 50 IDEA 307, 315-26 (2010) (using examples of takedown notices from Chilling Effects website to argue that the takedown provisions of DMCA are unnecessarily broad in light of the legislative purpose of the DMCA)

Marjorie Heins and Tricia Beckels, The “Curse of the Avatar” and Other Controversies from the Chilling Effects Clearinghouse, in Will Fair Use Survive? 29 (2005), available at

Edward Lee, Warming Up to User-Generated Content, 2008 U. Ill. L. Rev. 1459, 1543-44 (using Chilling Effects data to argue that modern copyright law is driven by informal copyright practices, some of which can have a chilling effect on speech)

Mark A. Lemley & Mark McKenna, Irrelevant Confusion, 62 Stan. L. Rev. 413, 417-18 (2010) (using Chilling Effects data to describe overreaching by trademark owners)

Jason Mazzone, Administering Fair Use, 51 Wm. & Mary L. Rev. 395, 406 (2009) (using Chilling Effects data to argue that content owners make overly-broad claims to their works, and often fail to account for any possible fair uses)

William McGeveran, Rethinking Trademark Fair Use, 94 Iowa L. Rev. 49, 63 n.72 (2008) (citing Chilling Effects data to argue that the lack of clarity around the fair use defense in trademark law leads rational markholders to aggressively enforce their marks)

Olivera Medenica & Kaiser Wahab, Does Liability Enhance Credibility?: Lessons from the DMCA Applied to Online Defamation, 25 Cardozo Arts & Ent. L.J. 237, 259 (2007) (using Chilling Effects data to illustrate criticisms of the DMCA, and arguing that despite its flaws, the DMCA can provide a framework for changes to the Communications Decency Act)

Emily Meyers, Art on Ice: The Chilling Effect of Copyright on Artistic Expression, 30 Colum. J.L. & Arts 219, 233-34 (2007) (citing study conducted by Brennan Center for Justice at New York University Law School using Chilling Effects data to argue that cease and desist notices discourage lawful uses of works)

Paul Ohm, Computer Programming and the Law: A New Research Agenda, 54 Vill. L. Rev. 117, 126 (2009) (citing Chilling Effects as a source of data to support interdisciplinary research agenda)

Frank Pasquale, Copyright in an Era of Information Overload: Toward the Privileging of Categorizers, 60 Vand. L. Rev. 135, 180 (2007) (using Chilling Effects data to argue that the threat of and high costs of litigation deter legitimate fair use claims from being asserted)

Miquel Peguera, When the Cached Link is the Weakest Link: Search Engine Caches Under the Digital Millenium Copyright Act, 56 J. Copyright Soc’y U.S.A. 589, 639 (2009) (using data from Chilling Effects to argue that copyright owners use the DMCA to target cached copies of third party infringing websites)

Lisa P. Ramsey, Increasing First Amendment Scrutiny of Trademark Law, 61 SMU L. Rev. 381, 404-05 (2008) (using Chilling Effects data to argue that the DMCA process can be misused in ways which raise First Amendment concerns)

Elizabeth A. Rowe, Introducing a Takedown for Trade Secrets on the Internet, 2007 Wis. L. Rev. 1041, 1060-61 (2007) (using two studies conducted using Chilling Effects data to explain pitfalls of DMCA notice-and-takedown procedures)

Jennifer Urban and Laura Quilter, Efficient Process or “Chilling Effects”? Takedown Notices under Section 512 of the Digital Millennium Copyright Act, 22 Santa Clara Computer & High Tech. L.J. 621 (2006)

Wendy Seltzer, International Trade and Internet Freedom, 102 Am. Soc’y Int’l L. Proc. 45 (2008) (using Chilling Effects data to advocate for greater transparency in government policies and laws that censor Internet speech)

Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, 24 Harv. J.L. & Tech. ___ (forthcoming 2010), available at

Christopher Soghoian, Caveat Venditor: Technologically Protected Subsidized Goods and the Customers Who Hack Them, 6 Nw. J. Tech. & Intell. Prop. 46, 77 (2007) (using information from Chilling Effects to argue that attempts to force webmasters to take down content leads Internet users to “engage in a modern form of civil disobedience by making copies available on their own websites”)

Christopher Sprigman, Reform(aliz)ing Copyright, 57 Stan. L. Rev. 485, 515 n.104 (2004) (citing data from Chilling Effects to argue that the lack of copyright formalities increases the time and expense involved in the copyright clearance process)

Hannibal Travis, Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right, 35 Hofstra L. Rev. 1519, 1523 n.8 (2007) (using data from Chilling Effects to argue that the DMCA deters lawful speech)

Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev. 986, 1003-04, 1003 n.77 (2008) (using data from Chilling Effects to argue that the DMCA provides an incentive for service providers to ignore users’ rights and free speech interests).

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