Obscure but true — phone companies and Internet service providers charge U.S. law enforcement and spy agencies a fee to turn over subscribers' communications and records, pursuant to law. Whistleblower site Cryptome published a leaked a copy of Yahoo's "Compliance Guide for Law Enforcement," the web company's marketing material detailing the prices and procedures for law enforcement and spy agencies coming to Yahoo for information about Yahoo subscribers.

Within hours, lawyers for Yahoo sent a DMCA threat letter to Cryptome, demanding that the snooping guide be taken down from the site, even though Cryptome's posting of the compliance manual was a clear fair use. Consider the "four factors" that courts examine in fair use cases: (1) Cryptome posted Yahoo's guide clearly for a transformative purpose (criticism, public debate); (2) it does not harm the "market" for the original (since Yahoo doesn't sell copies of the manual); (3) the nature of the publication is factual, not highly creative; and (4) while the whole manual was published, that was necessary for the transformative purpose. And, perhaps most importantly, a federal court has already ruled in favor of fair use on nearly these same facts, namely when Diebold Election Systems was sued for trying to censor embarrassing internal documents off the Internet using bogus DMCA takedowns.

Documents like the Yahoo "Compliance Guide for Law Enforcement" illuminate important facts about the public's use of Internet services and are critical to healthy, informed discussion about how the law impacts users' rights. Yahoo should know better -- you shouldn't use copyright threats to stop the public from exercising free speech on matters of public interest.