>Frustratingly, Netlify made us go through the full DMCA counternotice process—including a 10-business-day waiting period to have the site restored—even though this was never a DMCA claim.
DMCA is a scourge.
I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.
Edit: Just to be abundantly clear. My comment is a general comment on the DMCA, because the DMCA is mentioned quite a bit in the article, and the EFF was forced (erroneously) to follow the DMCA counter-notice process.
> I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.
This isn't a copyright claim, so DMCA doesn't apply, but the DMCA rewards labyrinthine DMCA processes by granting the provider immunity. Following notice / counter-notice timelines in the law means the host is not liable to either of the other parties for the takedown or the restoration.
Might be nice if there was a faster process to restoration if the customer vows to indemnify the host though.
> but at the very least there should be some form of punishment for bogus DMCA claims
As numerous other comments accurately point out, this was never a DMCA claim.
However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate.
The punishment would then be the recipient suing the sender for perjuring themselves in the sending of the bogus complaint. The problem is that is a very hard case to prove, and requires the expense of a lawsuit, so it is seldom ever taken by those who receive bogus complaints.
> However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate.
Perjury only applies to the "proper rights holder" part.
Being very reckless about sending out claims has no punishment.
I think one of the worst repercussions of the DMCA (there are so many), is how it seems to have perversely motivated tech companies to implement their own even worse bespoke processes for handling complaints--processes that are not actually DMCA. Like, DMCA is awful, but the process YouTube and others put you through is even worse, less transparent, and tend to put more, rather than less burden on the target/victim.
Netlify will not spend money to figure out a more lightweight process in order to stay further from the edges of DMCA. DMCA is too scary to play with, so just they transfer the cost and risk by making the affected party file the form.
What's likely to happen is SLAPP-esque legislation to stop platforms utilising its user base as its product, whilst simultaneously disenfranchising them from the moderation layer.
You can call a spade an apple but it doesn't make it an apple.
In order to have a DMCA counter notice there needs to be a DMCA notice. Their complaint is that there never was a DMCA notice so its not responsible to apply a counter notice policy as you are not countering a notice.
If I make you go through the DMCA counternotice process for buying apples from me, that's not a problem with DMCA, it's me having an absurd process around purchasing apples. I don't see how people weirdly requiring this process shows an issue with DMCA.
Only in the same totemistic, cargo-cult quality that GDPR has for basic data operations tangential to PII.
In short, without explicit punitive penalties enshrined in the legislation itself, you will never be able to stop Corporations wielding consumer-facing legislation in an asymmetric and bad faith manner. This is as true of GDPR and AML/KYC legislation as it is of DMCA and similar abuses of copyright and IP laws by lobbyists.
It seems to me that these processes are generally following the intent of the DMCA process, which is very different from spiteful responses to GDPR.
I think a closer analogy to GDPR would be companies turning off tracking for a bunch of people outside the EU, and I would lay most of the blame/praise for that at the feet of GDPR.
It is a problem with the DMCA because the DMCA makes companies do this to CYA because your apple purchase might be circumventing copyright and it's easier just to assume it applies to everything than to narrow it to actual copyright violations. It is a very bad law, it should never have been written, and it, not Obamacare, should be repealed.
> —even though this was never a DMCA claim. (The DMCA is copyright law, not trademark, and TotalEnergies didn’t even meet the notice requirements that Netlify claims to follow.)
With so many mentions of DMCA in the article, and the fact that the EFF had to go through a labyrinthine DMCA counter-notice process, you'd think I'd be allowed to comment about the DMCA...
Pedants will rage but you're spot on. The DMCA is a terrible law that has ended up causing lots of knock on bad effects, because there isn't enough incentive to prevent bad actors abusing it, and not enough incentive for companies not to do what Netlify did in this case.
The DMCA law did not _compel_ netlify to act this way, but the effects of DMCA did _cause_ netlify to act that way.
Is this really DMCA? Most take downs are not actually DMCA, they are different process that looks a lot like the DMCA. This is an important question because if this isn't actually a DMCA request but something similar than the EFF can go after the host for breach of contract by not serving their legal content (or the EFF signed a bad contract that allows the host to take down their content arbitrarily - though even then the courts may say this content should not have been covered). If this actually is the DMCA, then the notice is made under penalty of perjury and the EFF should press charges against whoever sent the notice - doing their best to get an example made of this person (probably a lawyer who should be removed from the bar for their actions once it is shown they committed perjury as part of their legal duties and thus are not ethical)
"goal" in this case meaning not "good for the economy, most businesses, and everyday people" - I think the implicit goal being "give asymmetrical power to larger and more entrenched organizations, at the detriment of literally everyone else, to help maintain and consolidate power." I've gotta admit DMCA has been extremely beneficial as a regulatory capture method.
Why do they have to use actual companies’ exact names and logos to make their parody, which someone could confuse for a real product? Can’t they use slight variations (e.g., McDowels to parody McDonalds)? Wouldn’t everyone still know who they were referring to?
Edit: Yes, this is satire, not parody, and satire needs to clearly identify its target to work properly. Here, however, the target of the satire appears to be carbon offset sellers, as a farcical “life offset” seller. The companies in question are linked as mere “supporters” of the satirical service; they don’t appear to be the direct target of the satire.
No it's not. There are trademark exemptions for satire/parody, and have been for a long time.
Sure the companies could have sued, but chances would have been about exactly 0% for those companies to win the case against the EFF on the back of their trademarks, and they knew that very well (my opinion), that case would've probably just been dismissed immediately.
People use parody names because they're afraid of getting sued, not because they have to. If the purpose of your website is activism, why water it down?
Because trademark law is complex and you can be sued for using real trademarks if anyone could think this was real and not a parody. Generally using obvious parody names gets the point across better anyway.
It's actually not that complex. They're not misrepresenting themselves as the brands. They're not in the same industry as the brands. The standard is not "if anyone could think this was real".
I wouldn't be so sure. Jack Daniels sued (and won) against a maker of dog toys that looked like Jack Daniels but were named "Bad Spaniels". Turns out trademark law actually is complex.
Jack Daniels won because the maker of the dog toys were selling them, and wanted a trademark themselves.
Here we're talking about activists making non-commercial parody usage; the EFF's letter already mentions the Lanham Act, and let us add to that the Trademark Dilution Revision Act of 2006 (https://en.wikipedia.org/wiki/Trademark_Dilution_Revision_Ac...) which adds an express fair-use defense for noncommercial use.
there are behaviors that are avoided not simply because they're allowed or disallowed, but because they'll likely generate trouble regardless of the outcome.
poking at a corporation for the sake of legal infringement is still likely to require a lawyer in place to defend against the non-sense, even if it won't hold in court. There is a lot of stuff like this -- you generally don't poke sleeping bears even if you're sure they won't awaken.
Would the film Idiocracy have been as funny if instead of making fun of Costco, Starbucks, and Carls Jr., they referred to them as Costinc, Sunbucks, and Carlos Sr.?
Parody doesn't necessarily require that you make significant alterations to a symbol or name. Only imbeciles would think that the fictional "Fuck you - I'm eating" slogan actually represents the Carls Jr. company in real life.
I'm not thrilled with Netlify's behavior as claimed by this EFF post, but I'd like to speak on a different concern:
Couldn't this activism have been just as effective, if done without libel?
We're in the AI counterfeiting era now. It's time to be more conscientious about false accusations.
"It's OK when I do it, because it's protected parody/satire! But when other people do it, to smear my business, or my friend, or my favored political candidate, by name, and they claim it's parody/satire, it's not OK, because... uh... reasons!"
If we think we're entitled to do it, can we complain when millions of others then also do it?
Who says the same people are advancing the conflicting arguments? I can only speak for myself, but my position is consistent here.
(btw, what is the name of this logical fallacy that assigns two beliefs from a population to the population as a whole? It seems like a variant of No True Scottsman but maybe there’s a more precise label for it?)
Weird for Netlify to be cowed by someone with deep pockets and, in the absence of a volte-face from those deep pockets, making the bullied party go through unnecessary steps, just in case the deep pockets became angrier and threatened Netlify some more.
Ultimately the bullied party upped-and-left Netlify, after which Netlify wiped its brow and said "phew! that was a close one! i nearly got caught up in a dispute!"
Netlify sound like cowards. I don't think they'd have my back if anyone objected to a website I hosted with them. I shouldn't purchase their services. Also, I should look at the track record of anyone else I'm thinking of using for hosting; do they have a good reputation for defending their clients' rights and telling barratrous lawyers to GTFO?
I think this parody website is great, and I'm glad EFF went to bat for them, but (and I hope this doesn't sound semi-conspiratorial) I think this may have been the website creator's goal all along. If it was, congrats, I think you played the energy companies well.
That is, my thought is that the website deliberately used real company logos and links (it would have been easy to use fake, similar-parody names) because they knew they'd be likely to receive C&Ds from these companies whose knee jerk response would be to demand their logos be removed. Then bam, the companies seem clearly in the wrong legally, the EFF goes to bat for them and also writes a long blog post like this, and instant Streisand Effect. I mean, I would have never heard about this website if it weren't posted here. FWIW I think this was a good strategy on the part of the website creators, so kudos.
Right, plenty of the artists parodied by Weird Al are individuals. Any permission sought (or denials respected) are purely for goodwill, not legally required.
That said, Weird Al hasn't actually distributed unmodified trademarks of other entities, to my knowledge. Even if that would generally be problematic, the context of a "featured partners" list as in TFA probably falls below a threshold of likelihood of confusion which arises in other unauthorized uses of trademarks.
No, wrong. The approval of that target of the parody (Amish, McDonalds, CIA etc) are not legally required.
Case law suggests that he is required to (and he does), license artist's music.
He's not parodying Miley Cyrus in 'Party in the CIA'. He's parodying the CIA. Because the lyrics and track aren't the subject, licensing of the track is required.
Similarly, If Repaer used a licensed font on the site, they'd have to license it.
I'm not sure about that. The definition of parody focuses on imitating an author or work (sometimes a whole genre), rather than on satirizing particular subject matter. He could write a song satirizing the CIA and if it happens to imitate a song/style of Miley, then it's a parody of the latter, not of the former.
When it comes to music copyright, certain aspects are copyrightable (therefore requiring license to use) and other aspects are not. Words and melody are (so Weird Al would need to license Miley's melody if he doesn't modify it sufficiently), but rhythm/chords/timbre/style/etc. are not (so Weird Al wouldn't need to license anything if he is merely copying those things from Miley). I think Al does some of each.
Right. Protected uses are protected because they were necessary. The Weird Al track that comes to mind which could be protected (but does not need the protection because Al always secures permission for these works) is "Smells Like Nirvana" because that specifically needs to use Nirvana's track "Smells Like Teen Spirit" because it's a (well meant, like a comedy roast) critique of Nirvana and their song. "It's hard to bargle nawdle zouss / With all these marbles in my mouth" is about Nirvana and about Smells Like Teen Spirit.
If you replace Smells Like Teen Spirit with Cliff Richards' "Saviours Day" it does not work, Cliff is not going to confuse and annoy your parents, his utterances aren't incomprehensible, and so on. The choice of song is necessary, which would justify protection.
Common misconception. As Philip points out, Al is only covered if he's making fun of the original song. "Smells like Nirvana" is a good example of a parody that didn't need approval (but Weird Al did anyway cuz he's a nice guy)
Not a US lawyer but would love to hear from anybody that is: could the gas companies sue for defamation for this?
In Australia I suspect defamation or misleading and deceptive conduct under our ACL might be possible avenues for the gas companies, although under the ACL the impugned conduct must be ‘in trade or commerce’ so that could be one problem with going after an ‘activist group’.
The site is amusing, and sure it feels fairly obvious that it’s parody/satire in this context, but also I went through the FAQ and fine print and I don’t see any admission that it’s parody/satire. They seem to hold very true to the joke to the point that it does feel a bit worrying. At what point does parody/satire become misinformation and defamation? If my mom landed on this site after it was emailed to her from one of her Fox News-loving elderly friends, I’m not sure she would have enough context to realize it wasn’t real. It seems like it would be better if they at least had a disclaimer or notice or something on the bottom of the site.
On a related note, I hosted The Empire Strips Back parody Star Wars burlesque show at my theater, and they had to have disclaimers everywhere explicitly saying it was a parody production. They got sued and won in court but the disclaimers were an important part of that.
Of course if the main concern is the misuse of the DMCA to get this taken down by claiming copyright infringement, that’s clearly an abuse of the DMCA. But if the companies involved sued for defamation/slander/whatever, I think there’s at least a legitimate concern here.
The original A Modest Proposal[1] also didn't include any admission it was parody/satire, and held very true to the joke to the point that it seemed worrying. The more uncomfortable it makes you, the more it sticks.
Also, the DMCA was not involved (though it's not clear that Netlify was aware of that).
The disclaimers were an important part of that likely because it made it even easier to establish than using some sort of "reasonable person" argument - that doesn't make it the standard required though.
Your purchase is supporting Life-Positive projects that increase life among HLV individuals across the United States. These projects include massage, sauna, and vital fluid transfer.
I still don’t understand how these fraudulent DMCA claims aren’t outright criminal - I thought even the garbage state of the law at least made objectively false claims requires a statement under penalty of perjury that you have a good faith belief in the accuracy of the claims.
Filing a DMCA claim over a trademark violation is a direct admission that that statement is false because the requirement is you identify the copyright violation and that you are the owner or representative of the owner of that copyright.
There's been a lot of talk about free speech on social media. A lot of it is bad faith political talk, but still, there is a lot of scrutiny of free speech on social media. Rightfully so, it's important for people to be able to speak in the modern "town square", but it's also important for people to run their own websites how they please.
We're targeting the wrong layer with our concerns about free speech. We should regulate hosting providers and enforce free speech on hosting providers, not on social media websites. People should have a right to host their content somewhere, but not the right to violate Twitter's ToS.
Unfortunately, relatively nobody cares about hosting. If Twitter bans a journalist people get upset, if Netlify caves to a slight bit of pressure takes a journalist's website down, nobody cares.
>Frustratingly, Netlify made us go through the full DMCA counternotice process—including a 10-business-day waiting period to have the site restored—even though this was never a DMCA claim.
DMCA is a scourge.
I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.
Edit: Just to be abundantly clear. My comment is a general comment on the DMCA, because the DMCA is mentioned quite a bit in the article, and the EFF was forced (erroneously) to follow the DMCA counter-notice process.
> I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.
This isn't a copyright claim, so DMCA doesn't apply, but the DMCA rewards labyrinthine DMCA processes by granting the provider immunity. Following notice / counter-notice timelines in the law means the host is not liable to either of the other parties for the takedown or the restoration.
Might be nice if there was a faster process to restoration if the customer vows to indemnify the host though.
No, it doesn't because trademark isn't copyright.
> but at the very least there should be some form of punishment for bogus DMCA claims
As numerous other comments accurately point out, this was never a DMCA claim.
However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate.
The punishment would then be the recipient suing the sender for perjuring themselves in the sending of the bogus complaint. The problem is that is a very hard case to prove, and requires the expense of a lawsuit, so it is seldom ever taken by those who receive bogus complaints.
> However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate.
Perjury only applies to the "proper rights holder" part.
Being very reckless about sending out claims has no punishment.
This isn't DMCA, it's just Netlify having a silly process.
I think one of the worst repercussions of the DMCA (there are so many), is how it seems to have perversely motivated tech companies to implement their own even worse bespoke processes for handling complaints--processes that are not actually DMCA. Like, DMCA is awful, but the process YouTube and others put you through is even worse, less transparent, and tend to put more, rather than less burden on the target/victim.
The processes are deliberately complex so that most people will just give up. Then YouTube doesn't even have to consider the claim.
Netlify will not spend money to figure out a more lightweight process in order to stay further from the edges of DMCA. DMCA is too scary to play with, so just they transfer the cost and risk by making the affected party file the form.
The difference is if this isn't DMCA then Netlify is liable to the EFF for breach of contract.
There's no contract to be in breach of.
What's likely to happen is SLAPP-esque legislation to stop platforms utilising its user base as its product, whilst simultaneously disenfranchising them from the moderation layer.
What contract does Netlify have with the EFF?
>Netlify made us go through the full DMCA counternotice process
You can call a spade an apple but it doesn't make it an apple.
In order to have a DMCA counter notice there needs to be a DMCA notice. Their complaint is that there never was a DMCA notice so its not responsible to apply a counter notice policy as you are not countering a notice.
If I make you go through the DMCA counternotice process for buying apples from me, that's not a problem with DMCA, it's me having an absurd process around purchasing apples. I don't see how people weirdly requiring this process shows an issue with DMCA.
Good grief. Is it not obvious that the DMCA's very existence has created a shield that enables such shenanigans?
Only in the same totemistic, cargo-cult quality that GDPR has for basic data operations tangential to PII.
In short, without explicit punitive penalties enshrined in the legislation itself, you will never be able to stop Corporations wielding consumer-facing legislation in an asymmetric and bad faith manner. This is as true of GDPR and AML/KYC legislation as it is of DMCA and similar abuses of copyright and IP laws by lobbyists.
It seems to me that these processes are generally following the intent of the DMCA process, which is very different from spiteful responses to GDPR.
I think a closer analogy to GDPR would be companies turning off tracking for a bunch of people outside the EU, and I would lay most of the blame/praise for that at the feet of GDPR.
It is a problem with the DMCA because the DMCA makes companies do this to CYA because your apple purchase might be circumventing copyright and it's easier just to assume it applies to everything than to narrow it to actual copyright violations. It is a very bad law, it should never have been written, and it, not Obamacare, should be repealed.
It could just as easily say "the full Turboencabultor Counternotice process" but that doesn't mean it has anything to do with anything.
> —even though this was never a DMCA claim. (The DMCA is copyright law, not trademark, and TotalEnergies didn’t even meet the notice requirements that Netlify claims to follow.)
With so many mentions of DMCA in the article, and the fact that the EFF had to go through a labyrinthine DMCA counter-notice process, you'd think I'd be allowed to comment about the DMCA...
Apparently not. Sorry.
Pedants will rage but you're spot on. The DMCA is a terrible law that has ended up causing lots of knock on bad effects, because there isn't enough incentive to prevent bad actors abusing it, and not enough incentive for companies not to do what Netlify did in this case.
The DMCA law did not _compel_ netlify to act this way, but the effects of DMCA did _cause_ netlify to act that way.
> you'd think I'd be allowed to comment about the DMCA
You are, you're just wrong
Okay, thanks for your valuable insight. Your comments have really contributed to the conversation.
Is this really DMCA? Most take downs are not actually DMCA, they are different process that looks a lot like the DMCA. This is an important question because if this isn't actually a DMCA request but something similar than the EFF can go after the host for breach of contract by not serving their legal content (or the EFF signed a bad contract that allows the host to take down their content arbitrarily - though even then the courts may say this content should not have been covered). If this actually is the DMCA, then the notice is made under penalty of perjury and the EFF should press charges against whoever sent the notice - doing their best to get an example made of this person (probably a lawyer who should be removed from the bar for their actions once it is shown they committed perjury as part of their legal duties and thus are not ethical)
> I think the whole thing is dumb
It's not, it's very smart. You probably are misidentifying the goal of the people that created it.
I don't care about the goal, I care about how it is actually used in practice.
"goal" in this case meaning not "good for the economy, most businesses, and everyday people" - I think the implicit goal being "give asymmetrical power to larger and more entrenched organizations, at the detriment of literally everyone else, to help maintain and consolidate power." I've gotta admit DMCA has been extremely beneficial as a regulatory capture method.
The way it's currently used in practice is exactly how it was intended.
Why do they have to use actual companies’ exact names and logos to make their parody, which someone could confuse for a real product? Can’t they use slight variations (e.g., McDowels to parody McDonalds)? Wouldn’t everyone still know who they were referring to?
Edit: Yes, this is satire, not parody, and satire needs to clearly identify its target to work properly. Here, however, the target of the satire appears to be carbon offset sellers, as a farcical “life offset” seller. The companies in question are linked as mere “supporters” of the satirical service; they don’t appear to be the direct target of the satire.
Because it would ruin the whole point.
Satire aims to evoke an emotional response, to point out moral failures and inconsistencies as crassly as possible.
Social criticism that first and foremost avoids offending anyone is a waste of paper in my opinion always.
It's still trademark infringement and both the activists and the middlemen (Netlify, in this case) can be sued.
This "satire" all comes across as "I'm 14 and this is deep." We get the joke. Just use a fictitious logo.
No it's not. There are trademark exemptions for satire/parody, and have been for a long time.
Sure the companies could have sued, but chances would have been about exactly 0% for those companies to win the case against the EFF on the back of their trademarks, and they knew that very well (my opinion), that case would've probably just been dismissed immediately.
You not finding it amusing doesn't mean it should be illegal.
Please give up in private and not spread your apathy across the internet.
Just because you believe in the cause of these activists, doesn't mean this isn't a two-way street.
Watering down trademarks opens the can of worms for all forms of trademark abuse by all kinds of parties:
https://www.businessinsider.com/proud-boys-trump-march-dc-co...
This isn't an example of parody or satire.
People use parody names because they're afraid of getting sued, not because they have to. If the purpose of your website is activism, why water it down?
Because trademark law is complex and you can be sued for using real trademarks if anyone could think this was real and not a parody. Generally using obvious parody names gets the point across better anyway.
It's actually not that complex. They're not misrepresenting themselves as the brands. They're not in the same industry as the brands. The standard is not "if anyone could think this was real".
I wouldn't be so sure. Jack Daniels sued (and won) against a maker of dog toys that looked like Jack Daniels but were named "Bad Spaniels". Turns out trademark law actually is complex.
https://www.today.com/food/news/jack-daniels-dog-toy-supreme...
https://en.wikipedia.org/wiki/Jack_Daniel%27s_Properties,_In...
Jack Daniels won because the maker of the dog toys were selling them, and wanted a trademark themselves.
Here we're talking about activists making non-commercial parody usage; the EFF's letter already mentions the Lanham Act, and let us add to that the Trademark Dilution Revision Act of 2006 (https://en.wikipedia.org/wiki/Trademark_Dilution_Revision_Ac...) which adds an express fair-use defense for noncommercial use.
there are behaviors that are avoided not simply because they're allowed or disallowed, but because they'll likely generate trouble regardless of the outcome.
poking at a corporation for the sake of legal infringement is still likely to require a lawyer in place to defend against the non-sense, even if it won't hold in court. There is a lot of stuff like this -- you generally don't poke sleeping bears even if you're sure they won't awaken.
They shouldn't have to. Is silencing criticism with the threat of a frivolous lawsuit preferable to you?
They feature human babies in test tubes on this page: https://repaer.earth/about
To me, it's obvious parody
Would the film Idiocracy have been as funny if instead of making fun of Costco, Starbucks, and Carls Jr., they referred to them as Costinc, Sunbucks, and Carlos Sr.?
Parody doesn't necessarily require that you make significant alterations to a symbol or name. Only imbeciles would think that the fictional "Fuck you - I'm eating" slogan actually represents the Carls Jr. company in real life.
Limiting parody by preventing trademarks is a terrible way to limit free speech. It is a slippery slope.
Imagine The Onion but using only fake company names in its articles.
See also "satire is dead" meme.
> Why do they have to use actual companies’ exact names and logos to make their parody, which someone could confuse for a real product?
So what?
They neglected to use the phrase "precious bodily fluids" in their Plasma Pals explanation, which is mildly disappointing.
I'm not thrilled with Netlify's behavior as claimed by this EFF post, but I'd like to speak on a different concern:
Couldn't this activism have been just as effective, if done without libel?
We're in the AI counterfeiting era now. It's time to be more conscientious about false accusations.
"It's OK when I do it, because it's protected parody/satire! But when other people do it, to smear my business, or my friend, or my favored political candidate, by name, and they claim it's parody/satire, it's not OK, because... uh... reasons!"
If we think we're entitled to do it, can we complain when millions of others then also do it?
Who says the same people are advancing the conflicting arguments? I can only speak for myself, but my position is consistent here.
(btw, what is the name of this logical fallacy that assigns two beliefs from a population to the population as a whole? It seems like a variant of No True Scottsman but maybe there’s a more precise label for it?)
The parody website in question: https://repaer.earth/
It uses real logos from three gas companies, two of which tried (unsuccessfully) to have their logos removed.
Weird for Netlify to mistake trademark law for copyright law.
Weird for Netlify to be cowed by someone with deep pockets and, in the absence of a volte-face from those deep pockets, making the bullied party go through unnecessary steps, just in case the deep pockets became angrier and threatened Netlify some more.
Ultimately the bullied party upped-and-left Netlify, after which Netlify wiped its brow and said "phew! that was a close one! i nearly got caught up in a dispute!"
Netlify sound like cowards. I don't think they'd have my back if anyone objected to a website I hosted with them. I shouldn't purchase their services. Also, I should look at the track record of anyone else I'm thinking of using for hosting; do they have a good reputation for defending their clients' rights and telling barratrous lawyers to GTFO?
I think this parody website is great, and I'm glad EFF went to bat for them, but (and I hope this doesn't sound semi-conspiratorial) I think this may have been the website creator's goal all along. If it was, congrats, I think you played the energy companies well.
That is, my thought is that the website deliberately used real company logos and links (it would have been easy to use fake, similar-parody names) because they knew they'd be likely to receive C&Ds from these companies whose knee jerk response would be to demand their logos be removed. Then bam, the companies seem clearly in the wrong legally, the EFF goes to bat for them and also writes a long blog post like this, and instant Streisand Effect. I mean, I would have never heard about this website if it weren't posted here. FWIW I think this was a good strategy on the part of the website creators, so kudos.
Streisand effect bait?
I don't get this. If it was a person they were claiming was associated with their fictious programme surely that person could sue for defamation?
From my understanding parody is not defamation.
Right, plenty of the artists parodied by Weird Al are individuals. Any permission sought (or denials respected) are purely for goodwill, not legally required.
That said, Weird Al hasn't actually distributed unmodified trademarks of other entities, to my knowledge. Even if that would generally be problematic, the context of a "featured partners" list as in TFA probably falls below a threshold of likelihood of confusion which arises in other unauthorized uses of trademarks.
No, wrong. The approval of that target of the parody (Amish, McDonalds, CIA etc) are not legally required.
Case law suggests that he is required to (and he does), license artist's music.
He's not parodying Miley Cyrus in 'Party in the CIA'. He's parodying the CIA. Because the lyrics and track aren't the subject, licensing of the track is required.
Similarly, If Repaer used a licensed font on the site, they'd have to license it.
> He's parodying the CIA.
I'm not sure about that. The definition of parody focuses on imitating an author or work (sometimes a whole genre), rather than on satirizing particular subject matter. He could write a song satirizing the CIA and if it happens to imitate a song/style of Miley, then it's a parody of the latter, not of the former.
When it comes to music copyright, certain aspects are copyrightable (therefore requiring license to use) and other aspects are not. Words and melody are (so Weird Al would need to license Miley's melody if he doesn't modify it sufficiently), but rhythm/chords/timbre/style/etc. are not (so Weird Al wouldn't need to license anything if he is merely copying those things from Miley). I think Al does some of each.
Right. Protected uses are protected because they were necessary. The Weird Al track that comes to mind which could be protected (but does not need the protection because Al always secures permission for these works) is "Smells Like Nirvana" because that specifically needs to use Nirvana's track "Smells Like Teen Spirit" because it's a (well meant, like a comedy roast) critique of Nirvana and their song. "It's hard to bargle nawdle zouss / With all these marbles in my mouth" is about Nirvana and about Smells Like Teen Spirit.
If you replace Smells Like Teen Spirit with Cliff Richards' "Saviours Day" it does not work, Cliff is not going to confuse and annoy your parents, his utterances aren't incomprehensible, and so on. The choice of song is necessary, which would justify protection.
'SPAM' and 'All About the Pentiums' hinge on trademark usage that isn't part of the song being parodied.
Common misconception. As Philip points out, Al is only covered if he's making fun of the original song. "Smells like Nirvana" is a good example of a parody that didn't need approval (but Weird Al did anyway cuz he's a nice guy)
Not a US lawyer but would love to hear from anybody that is: could the gas companies sue for defamation for this?
In Australia I suspect defamation or misleading and deceptive conduct under our ACL might be possible avenues for the gas companies, although under the ACL the impugned conduct must be ‘in trade or commerce’ so that could be one problem with going after an ‘activist group’.
Tried to do some online research (heh) and it would appear that satire of public figures is just straight up protected by the first amendment. https://en.m.wikipedia.org/wiki/Hustler_Magazine_v._Falwell
The site is amusing, and sure it feels fairly obvious that it’s parody/satire in this context, but also I went through the FAQ and fine print and I don’t see any admission that it’s parody/satire. They seem to hold very true to the joke to the point that it does feel a bit worrying. At what point does parody/satire become misinformation and defamation? If my mom landed on this site after it was emailed to her from one of her Fox News-loving elderly friends, I’m not sure she would have enough context to realize it wasn’t real. It seems like it would be better if they at least had a disclaimer or notice or something on the bottom of the site.
On a related note, I hosted The Empire Strips Back parody Star Wars burlesque show at my theater, and they had to have disclaimers everywhere explicitly saying it was a parody production. They got sued and won in court but the disclaimers were an important part of that.
Of course if the main concern is the misuse of the DMCA to get this taken down by claiming copyright infringement, that’s clearly an abuse of the DMCA. But if the companies involved sued for defamation/slander/whatever, I think there’s at least a legitimate concern here.
The original A Modest Proposal[1] also didn't include any admission it was parody/satire, and held very true to the joke to the point that it seemed worrying. The more uncomfortable it makes you, the more it sticks.
Also, the DMCA was not involved (though it's not clear that Netlify was aware of that).
1: https://en.wikipedia.org/wiki/A_Modest_Proposal
The disclaimers were an important part of that likely because it made it even easier to establish than using some sort of "reasonable person" argument - that doesn't make it the standard required though.
This website is a gem.
From the FAQ: Where does my money go?
Your purchase is supporting Life-Positive projects that increase life among HLV individuals across the United States. These projects include massage, sauna, and vital fluid transfer.
https://repaer.earth/programs/ omg the balloon there at the bottom hahaha :(((
I still don’t understand how these fraudulent DMCA claims aren’t outright criminal - I thought even the garbage state of the law at least made objectively false claims requires a statement under penalty of perjury that you have a good faith belief in the accuracy of the claims.
Filing a DMCA claim over a trademark violation is a direct admission that that statement is false because the requirement is you identify the copyright violation and that you are the owner or representative of the owner of that copyright.
There's been a lot of talk about free speech on social media. A lot of it is bad faith political talk, but still, there is a lot of scrutiny of free speech on social media. Rightfully so, it's important for people to be able to speak in the modern "town square", but it's also important for people to run their own websites how they please.
We're targeting the wrong layer with our concerns about free speech. We should regulate hosting providers and enforce free speech on hosting providers, not on social media websites. People should have a right to host their content somewhere, but not the right to violate Twitter's ToS.
Unfortunately, relatively nobody cares about hosting. If Twitter bans a journalist people get upset, if Netlify caves to a slight bit of pressure takes a journalist's website down, nobody cares.
People should care: https://protectthestack.org/
That parody website responds like it is mining crypto in the background.
Not going viral when I can't share it in good conscience.