Newspaper Blogs

March 13, 2004

THE THIN-SKINNED TIMES....In case you haven't been following this, a guy named Robert Cox produced a parody version of a New York Times correction page a few days ago and was promptly served with legal notice from the Times to take it down because of copyright violation. Parody is a well known fair use exception to the copyright rules, but whether Cox exceeded fair use or not is something I can't judge.

(Cox took the parody down after the Times asked him to, but some other bloggers have picked it up in the meantime. You can see it here.)

The Times also made a DMCA complaint to Cox's ISP asking them to take his site down, which he received a copy of yesterday. Now, their first action was moronic enough, providing vast amounts of publicity to a site that otherwise wouldn't have gotten much, but this action is almost beyond belief. The complaint includes a bunch of screen captures of Cox's site, and as near as I can tell there's nothing there that even remotely infringes on the Times' copyright.

This goes beyond mere bullying and descends into paranoid — and hypocritical — lunacy. The Times certainly has the right to protect its copyright, but at the same time you'd think the publisher of the Pentagon Papers would show a little more respect for free speech and a little more tolerance for criticism.

They should be ashamed of themselves.

UPDATE: I also see that on Thursday Cox contacted his ISP, who told him that "under the terms of the DMCA their hands are tied. They were willing to give me a one-day extension but until The New York Times withdrew their complaint to Verio my site would be shut down for 10-14 days pending a review of my counter-claim."

I never liked DMCA much in the first place, but is this really true? All you have to do is make a complaint and a website is shut down for 10-14 days?

Especially in cases of free speech, shouldn't the burden be on the plaintiff to prove infringement? Does DMCA really allow a corporation to shut down a website merely on their say so, without so much as an injunction or a public hearing?

UPDATE: The Times has backed off. Details here.

Posted by Kevin Drum at March 13, 2004 08:31 AM | TrackBack


Maybe we should give the Times a break. With all the free Jayson Blair coverage polluting the airwaves, they might be a little cranky.

Posted by: Roxanne at March 13, 2004 08:34 AM | PERMALINK

Well, I don't personally find it all that funny -- but it damn sure is protected free speech.

Posted by: eyelessgame at March 13, 2004 08:39 AM | PERMALINK

Its all Bush's fault. Everything bad is Bush's fault (or Cheney's, or Rumsfeld's, of Ashcroft's, etc. etc.).

Posted by: fw at March 13, 2004 08:39 AM | PERMALINK

Seriously, though, the Times op-ed page has become a joke, especially for a newspaper that purports to be The Paper of Record.

Krugman plays fast and loose with the facts, Dowd hasn't made sense for several years now, Friedman is just a bit too pleased with himself for my liking, etc. Kristof has opinions, but works hard to justify them, which is what a good columnist should do.

Posted by: fw at March 13, 2004 08:42 AM | PERMALINK

I don't think it was really trying to be funny.

Posted by: rachelrachel at March 13, 2004 08:47 AM | PERMALINK

that's not exactly the same site that i saw last week (forget which blogger linked to it). the one i saw didn't have the "Not" in front of the "New York Times" logo at the top, and it had a lot more of the NYT sponsor buttons, banners and various clutter around the outside. there was really no way to tell it wasn't the NYT except for the URL.

Posted by: cleek at March 13, 2004 08:48 AM | PERMALINK

Its all Bush's fault

the DMCA's actually Clinton's fault.

Posted by: cleek at March 13, 2004 08:50 AM | PERMALINK

Personally I think the NYT has lost it ever since 9/11. Jason Blair was just a symptom, but when you had Thomas Friedman writing that the war against Iraq was only about oil, but that it was OK to invade anyways, you really have to wonder what is going on there. When you have Krugman as the relentless hammer from the left and Safire as the voice of Nixon from the grave, there is no consistency whatsoever to their editorial policy.

IMHO, the LA Times is much more (for want of a better term) "fair and balanced" in their reporting and editorials. Now if we could just offshore Mike Ramirez...

Posted by: non economist at March 13, 2004 08:52 AM | PERMALINK

Doesn't look like a "parody" to me, looks more like straightforward corrections, just by copying the NYT's style. Sure, it's ironic that the NYT has no standards for columnists, but I don't know if that makes the article itself a "parody" or "satire".

With that said, the NYT is notoriously anal about protecting their copyrights. Infocom, makers of the text adventure game "Zork", came out with a newsletter called "The New Zork Times" (many years ago) and the NYT shut that down in short order.

And it certainly does look like they took a line from the Bill O'Reily's Guide to Empowering Your Enemies.

Posted by: Moli at March 13, 2004 08:54 AM | PERMALINK

It's not really a question of whether this was good parody, merely that it's clearly parody. Even on the original version you didn't have to read very far to figure out that it was, indeed, parody.

And if anyone should err on the side of tolerance for the right to criticize, it's the Times.

Posted by: Kevin Drum at March 13, 2004 09:00 AM | PERMALINK

I loved the parody, but in the current context of political dishonesty, particularly by Bushco, it could be easily mistaken for a real page by many people. As I am basically siding libertarian, I don't know how to come down on it.

Posted by: Gary J Moss at March 13, 2004 09:06 AM | PERMALINK

NYT jumped the shark after 9-11. The Pentagon Papers, if they came out today, would be leaked to a blogger.

Posted by: Deek at March 13, 2004 09:11 AM | PERMALINK

My understanding of the legal framework is that renouncing protection of your copyright on any perceived instance of violation is essentially a perpectual consent for future copyright infringement. There is hardly any choice the Times has but to go after Cox. It is legally irrelevant (and hence unfair to the times) to point out if some of the comments are on point or that the Times may well have deserved their comeupance.
As for the OpEd page, it is easy to criticize it but it still remain the reference OpEd page in the US...
I am not really concerned with perfect accuracy in pages that are after all primarily opinion pages. What I am very concerned with is the lack of a strong statement on the part of the Times to correct the accumulated disinformation they have carried in the build up to the Iraq war in their main pages...

Posted by: Francois at March 13, 2004 09:11 AM | PERMALINK

you don't read slashdot much, do you?

Posted by: praktike at March 13, 2004 09:20 AM | PERMALINK

"Its all Bush's fault

the DMCA's actually Clinton's fault."

Actually, while the Clinton Admin did the DMCA, Corproate America and the Republicans love the effect, therefore it is theirs in spirit.

Sure, Clinton did the occasional stupid thing, but do the thugs give him credit for their DMCA, DOMA ... and in some ways, NAFTA ("good for bottom line = absolute good")?

Whenever Draconian legislation is proposed, people should envision their worst political nightmare as the wielder of The Power.


Posted by: Scorpio at March 13, 2004 09:23 AM | PERMALINK

I can't argue the merits, but I loved the referral to another story: "Prisons Add Amenities as Chief Executives Start Arriving."

Posted by: Linkmeister at March 13, 2004 09:35 AM | PERMALINK

Don't get me started on the DMCA, but I've been wondering when someone's going to start using it AGAINST these bastards. They're supposed to take down the offending material immediately when confronted (if I understand things right and I'm not a lawyer) so it seems easy enough to be used to attack anybody you don't like for any reason. I know. I've had the California Prison Industry Authority on my ass for years now. My basic response in undiplomatic terms has been "f*ck you." Works so far (and BOY are they in the wrong).

I spit on Sonny Bono's grave.

Posted by: Jeebus at March 13, 2004 09:38 AM | PERMALINK

"My understanding of the legal framework is that renouncing protection of your copyright on any perceived instance of violation is essentially a perpectual consent for future copyright infringement."

Your "understanding" appears to be a mishmash of various legal concepts, not a coherent understanding of copyright law. You cannot lose copyright protection on future work based on not attacking copyright violations of prior work. Trademark infringement has to be defended against or the trademark will lose legal meaning, but copyrights are not quite the same.

In any case, there are many ways of protecting trademarks and copyrights, some more hostile than others. If you don't mind how someone is using your intellectual property, you can always choose to GRANT them limited usage rights under terms that completely protect your IP.

In this case, it is far from clear that any infringement has occured.

"There is hardly any choice the Times has but to go after Cox."

Even if Cox were guilty of copyright violation (which is dubious because of the parody exemption) or trademark infringement, the Times certainly does not HAVE to file a DMCA complaint with his ISP trying to get his site taken off the internet. They are doing this because they WANT his opinions suppressed.

Several aspects of the DMCA should have been ruled unconstitutional, IMO. This is a text book example of why.

Posted by: JB at March 13, 2004 09:39 AM | PERMALINK

My understanding of the legal framework is that renouncing protection of your copyright on any perceived instance of violation is essentially a perpectual consent for future copyright infringement.

Your understanding is incorrect.

That's narrowly true in some areas of trademark law. Not in copyright law.

Posted by: Evan at March 13, 2004 09:39 AM | PERMALINK

Francois, I think you're confusing trademark infringement with copryight violations. Related in that they are intellectual property issues, but otherwise not.

Failure to vigorously protect your trademark can result in it devolving into the public domain. I know because I once posted a newsgroup mention of "xerox your paper" and was contacted by their lawyers and notified that "xerox" was a trademark and not a synonym for "photocopy."

They're still all bastards.

Posted by: Jeebus at March 13, 2004 09:41 AM | PERMALINK

"Actually, while the Clinton Admin did the DMCA, Corproate America and the Republicans love the effect, therefore it is theirs in spirit. ... Sure, Clinton did the occasional stupid thing, but do the thugs give him credit for their DMCA"

The DMCA and similar measures (like the extremely offensive "Super-DMCA" laws passed or being considered in several states) are being pushed by the media giants in the entertainment industry - not by big business in general. The computer industry, for example, tends to oppose these laws.

The entertainment industry was on very good terms with Clinton, so yes, I think the thugs in question gave him full credit. But most of the attacks on free speech from the past decade have had strong bipartisan support. The one thing that the "nanny staters" and the "moral majority" seem to be able to agree on is that they don't really like the First Amendment.

Posted by: JB at March 13, 2004 09:48 AM | PERMALINK

Duly noted and appreciated from those respondents who were courteous.

Posted by: Francois at March 13, 2004 09:55 AM | PERMALINK

It's pretty sad that his "corrections" of Krugman range from tendentious to outright false.
Is this guy a Luskin clone?
To give one example: he chides Krugman for claiming that more people are long term out of work than in the past, using the BLS
"discouraged worker" stats to back himself up.
This is dishonest on several levels.
First of all, Krugman doesn't use the term "discouraged worker", which has a precise technical meaning; as a matter of fact there are other stats which support his contention (I believe Brad Delong handled this issue when the Krugman column appeared). Another rebuttal to his attack is to note that the percentage of working age people who are actually working has gone down to levels not seen in decades---again, this has been noted by Brad Delong.

Perhaps the NYtimes can issue a correction for this idiots "corrections" page.

Posted by: marky at March 13, 2004 09:56 AM | PERMALINK

there was really no way to tell it wasn't the NYT except for the URL.

What else is there?

That would be like a cop blaming the architects of a subdivision for his storming the wrong house by saying "There was really no way to tell is wasn't the right place except for the street address."

This is pure SLAPP.

Posted by: Erik at March 13, 2004 10:03 AM | PERMALINK

I didn't mean it wasn't good parody, I meant it didn't look like "parody" at all. He's imitating the look (painstakingly identically) and style of the NYT to MAKE A POINT, but that doesn't automatically make it a parody. He even SAYS at the end that it is a "Supplemental Corrections Page for New York Times readers," which doesn't support his argument that it's intended as parody, unless that line itself is intended as some sort of postmodern satire of his own site. Which of course it could be, but he might have trouble convincing a judge of that.

Of course, I still think the NYT is being anal.

Posted by: Moli at March 13, 2004 10:11 AM | PERMALINK

Maybe the NYT was upset because Cox did not follow their style sheet. He repeated the error in the correction (an absolute no no). See the pathetic link begger for corrected corrections.

On a semi serious note, I do not think that Krugman plays fast and loose with the facts. If you check the Krugman column "social security scares" you will see that not one of Cox's "corrections" is correct. Krugman already dealt with all the issues raised by Cox in his column.

I respect Cox's freedom of speech but I think it is obvious that he did not read the column which he pretends to criticize. Notice that he did not link to it.

Posted by: Robert Waldmann at March 13, 2004 10:19 AM | PERMALINK

When you see stuff like "none of the Republican party nominees for President have ever owned a ranch the size of Oklahoma" and links with heds such as "Cheney Denies New Undisclosed Location Is Tony Roma's Ribs in Owings Mills", you can be pretty damn sure it's parody. I, too, am annoyed by his incorrect corrections, but damn the DMCA all the same. I've changed the name of my blog in protest...

Posted by: NTodd at March 13, 2004 10:33 AM | PERMALINK

Thanks for agreeing with me, Robert.
What really burns is to have him juxtapose Brooks and Krugman. Brooks is a complete shill, with a vicious paranoid agenda and no attention to facts;
Krugman IS shrill, but he's meticulous about facts.
It's simply STUPID for a non-economist to try to correct him "mistakes".

STUPID: see "donald luskin"

Posted by: Marky at March 13, 2004 10:34 AM | PERMALINK

Welcome to the DMCA! Many in the tech press have been trying to explain this for the last two years - in particular, the destruction of the presumption of innocence. No one would listen to them; after all, they were "just geeks".

Perhaps now that ordinary political bloggers are being hit there will be some general discussion of the perils thereof.

As long as you don't offend any of our corporate masters, that is!


Posted by: Cranky Observer at March 13, 2004 10:48 AM | PERMALINK

Robert Waldmann, for the record, the Krugman "corrections" are not in fact Cox's, they are actually Luskin's. check out the "Go To Source" links...

Posted by: radish at March 13, 2004 11:05 AM | PERMALINK

there was really no way to tell it wasn't the NYT except for the URL.

What else is there?

so, it's up to users to know how the NYT's site formats its URLs (which like most big sites are probably a mix of dynamically generated server junk and hard-coded folder names, possibly shooting off to auxilliary domains for things like archives, etc) ?

that might be a valid demand. i dunno. but, when i hit that site last week, i assumed it was a mirror of a real NYT page. (like maybe the NYT took it down, but this guy managed to copy it just in time, whatever).

IMO, that site crossed the line. it gave (when i saw it) no clue that it wasn't an actual NYT page. and if you weren't familiar with all of those pundits, you might not have even noticed it was a joke.

Posted by: cleek at March 13, 2004 11:17 AM | PERMALINK

Yes, the DMCA really is that bad. The Electronic Frontier Foundation's page of DMCA activities ( has a good 5-year retrospect on the unintended consequences of the DMCA.

Also check out the Chilling Effects Clearinghouse (a joint project of the EFF and several law schools) which has a fine collection of DMCA takedown letters. Google, for example, has no choice but to take down websites from its collection when Google receives a DMCA letter. However, by putting the letter at Chilling Effects the link to the site is at least marginally preserved.

Posted by: kathryn from Sunnyvale at March 13, 2004 11:21 AM | PERMALINK

There are all kinds of provisions in the DMCA and the somewhat-related UCITA (sp?) legislation, it just requires people to really start using them to fight back.

For example:

slr> tail /var/log/smtpd.log
----connect from
250 Hi. access to this smtp
250-port is conditional on releasing the owners
250-of this host from all DMCA and UCITA
250-restrictions. If you do not accept these
250-terms, disconnect now. Sending a "MAIL"
250-command is considered acceptance of these
250-terms. You snooze, you lose.
250 Ok, it's your funeral

Posted by: Satan luvvs Repugs at March 13, 2004 11:28 AM | PERMALINK

this (Digital Copyright, Jessica Litman) is a pretty good book on how the DCMA (and earlier laws like it) came to be.

warning: reading it may leave you feeling that our government is hopelessly corrupt and that the system is totally rigged against the average citizen. it's a disgusting process. in a nutshell: industry lawyers write a law that congressmen don't really understand, due to the intricacies of arcane branches of law with which they aren't familiar. congress invites comment from people who know about these things (ie. industry) who all say "yep. sounds good.". congress says "yep. sounds good!" citizens get the shaft.

Posted by: cleek at March 13, 2004 11:30 AM | PERMALINK

The Times response to the blog parody page really shows the arrogant face of some mass media operations. Instead of going after the blogger who pointed out their folly, the Times should be replacing the management team that allowed their editorial and news pages to degenerate into such a self indulgent daily joke.

If I were the publisher, I'd fire the NYT editorial page management, who seems to lack the mojo to force their star columnists to defend their dubious assertions of "fact". I'd be so
angry at the team that turned "America's Newspaper of record" into "America's Newspaper of Fishwrap".

Yes, perhaps the blogger crossed a line by copying the look of a Times page. But the funniest part to me was knowing there is almost no chance that an honest correction page would ever appear in the Times, though one is badly needed.

Posted by: Mike W at March 13, 2004 11:35 AM | PERMALINK

NTodd: I didn't see a link with a hed "Cheney Denies New Undisclosed Location Is Tony Roma's Ribs in Owings Mills". Although I didn't click on and read every single hyperlink on the page, most of them went to the NYT's own website, with the rest going to the Daily Howler,, Nation Review, etc. Sites not usually known for satire.

I think he was just editorializing on a counterfit NYT page -- which is basically what he admitted to on the page itself -- not satirizing anything. I guess it depends upon how broadly you want to define the word "parody", or more importantly, how broadly a judge does. If you're right and it's intuitively obvious that it is a parody, he should have no trouble getting a free lawyer to get it *literally* laughed out of court.

The New York Times: All the News That's Wholly Without Merit.

Posted by: Moli at March 13, 2004 11:38 AM | PERMALINK

This guy looks like a practioner of Bush Ellipsis spin:

"In My First Hundred Days In The White House, I Will Roll Back George Bush's Tax Cut..."
(Sen. John Kerry, Remarks In Manchester, N.H., 12/27/03)

Kerry's ACTUAL remarks:

In my first hundred days in the White House, I will roll back George Bush's tax cut for the WEALTHIEST so that we can invest in JOBS, EDUCATION and HEALTH CARE

Posted by: standa at March 13, 2004 12:09 PM | PERMALINK

It had problems at places:

1. Although the letterhead says Not The New York Times, there are links and references all over the place to NYTimes, the links actually lead to

these should all be changed to NNYTimes

except of course for the link at the bottom to the email calling for a better standard of corrections, which this being the point of the parody (to prompt people to send such emails) should be left as is.

Finally the bottom Get home delivery of The Times link should prob. be get Home delivery not of the Times or some such funny thing, and the Top Articles should again reference Top

Posted by: bryan at March 13, 2004 12:13 PM | PERMALINK

(Sweet God, a troll is posting over my initials!)

"...Does DMCA really allow a corporation to shut down a website merely on their say so, without so much as an injunction or a public hearing?"

Yup. And your turn will come, yet this year.

Posted by: Frank Wilhoit at March 13, 2004 12:42 PM | PERMALINK

YES, the DMCA is that bad.

Posted by: Bryguypgh at March 13, 2004 01:13 PM | PERMALINK

Bryan's got a point, which others have missed. The complaint (linked to by Kevin; you did read it, right?) specifically mentions the use of content from Linking to that content would have been a copyright violation even pre-DMCA. If the author/parodist had gone to the trouble of redoing the whole page, ads, links, and all, he would be in the clear, but he's posting Times *content* as his own. That's a copyright violation, and should be.

Posted by: rowrbazzle at March 13, 2004 01:13 PM | PERMALINK

Since I'm not a lawyer and don't really follow this stuff, are there any challenges to DMCA wending their way thru the courts? Or has it already been upheld? It sure sounds like a pretty clear reversal of presumption of innocence to me.

Posted by: flory at March 13, 2004 01:17 PM | PERMALINK

The complaint (linked to by Kevin; you did read it, right?) specifically mentions the use of content from Linking to that content would have been a copyright violation even pre-DMCA.

No, it didn't, rowr:

Dear Mr. Cox

I am copyright counsel to The New York Times Company.

It has come to our attention that you have posted on your web site at what you are calling your "faux Times Columnist Corrections Page." You have copied numerous elements from a legitimate The New York Times on the Web page, complete with live links and actual advertisements, and have altered it to display and solicit criticism of The Times Op-Ed columns.

Links and ads aren't content. The advertisers might have a case for copyright infringement, but they aren't the ones lodging the complaint.

Posted by: Erik at March 13, 2004 01:39 PM | PERMALINK

"Linking to that content would have been a copyright violation even pre-DMCA. If the author/parodist had gone to the trouble of redoing the whole page, ads, links, and all, he would be in the clear, but he's posting Times *content* as his own. That's a copyright violation, and should be."

No, deep links are not copyrighted.

Posted by: Sebastian Holsclaw at March 13, 2004 01:53 PM | PERMALINK

The New York Times iw way out of line and way out of touch. Wow.

Posted by: Slothrop at March 13, 2004 02:20 PM | PERMALINK

"I never liked DMCA much in the first place, but is this really true? All you have to do is make a complaint and a website is shut down for 10-14 days?"

Well, yes; but I'm given to understand the complaint is made under oath, so doing it to shut down original political criticism can get you nailed for perjury.

Remember, this was designed for serving the RIAA, not Rove. The RIAA doesn't mind saying "Dear As of the instant this message is sent, the URL is a copy of 'Piano Man'" under oath.

Posted by: Michael Martin at March 13, 2004 02:31 PM | PERMALINK

"The Times response to the blog parody page really shows the arrogant face of some mass media operations." --- exactly..

Posted by: Drudge is DRUNK at March 13, 2004 02:51 PM | PERMALINK

Erik et al.-

Deep links aren't copyrighted or a legal responsibility. Ads are. The latter issue has come up a number of times in connection with print periodicals; barring a definitive ruling to the contrary, the presumption is that the same rules apply.

Besides, if you watch the stream of URLs as you load the site, or check source, you'll see links to for elements that are neither links nor ads.

..."All materials contained on this site are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of The New York Times Company. You may not alter or remove any trademark, copyright or other notice from copies of the content.

However, you may download material from The New York Times on the Web (one machine readable copy and one print copy per page) for your personal, noncommercial use only. "

And that's before you get to Section Two of the User Agreement, which Cox has presumably agreed to. I haven't checked Section Two; the above is sufficient.

Since every year I have to sign release forms absolving various phone directory advertising outfits from all legal responsibility for my use of certain images, I'm somewhat famiiar with the issue. That's commercial use, of course, but Cox's site makes money for him through affiliate programs linking to various vendors.

You my have missed a comment above that the "Not" in front of the Times logo was a late addition.

Cox's post is simply one more confirmation that the right is almost inherently unethical. Seems odd that so many allegedly non-Libertarians (OK, I'm assuming, but...) are defending him.

Posted by: rowrbazzle at March 13, 2004 05:19 PM | PERMALINK

I'm anti-DMCA, but I wrote Robert Cox that I believed he should be sued. My analysis was not based on DMCA, but on existing copyright law. It simply is not possible to call this parody. The effort to copy the NYTimes was too much and it required an undue amount of vigilance on the part of the reader to determine that it was not the NYTimes. This is independent of the fact that Cox was a lying weasel in many of his corrections.

Posted by: elliottg at March 13, 2004 07:20 PM | PERMALINK

I don’t see a reason for concern. Look at what the guy bitches about and then look at how he does it. One and the same.

The Times may not see this site as a parody because it is not one. The Times is ripped to hell by every wingnut and liberal on the internet and never offers concern about it. Ann Coulter does not use their logo to do it under however and nor does Buzzflash.

A site that takes out of context quotes claimed to have been taken out of context does not clarify much. A site that manipulates numbers to counter alleged number manipulation does not add much.

I don’t see this as a parody site. There is no insightful use of humor. I see a guy nit picking other folk's nit picking for copy. Editorial criticism of editorial comment is ok I guess as long as your pick your own logo to do it under.

Fuck the wingnut anyway.

Posted by: Richard at March 13, 2004 08:15 PM | PERMALINK

Richard, you need to look up the definition of the word parody in the dictionary. Thanks in advance.

Hint: the words: "imitation," "ridiculous," and "feeble," play a large part for the non-musical entery. There is a reason off-hand mocks are protected -- because they are so easy. See also: Publus's tract-work before he got involved in debates about federalism.

Posted by: js7a at March 13, 2004 09:29 PM | PERMALINK

This imitation was neither feeble - it took too much effort - nor ridiculous - there was no comic value. Look, not everything that somebody says is parody is parody especially if they are motivated to claim it is parody since otherwise it is a copyright violation. This is such a lame excuse on a par with people who make racist comments and then say they were jokes.

Posted by: elliottg at March 13, 2004 09:43 PM | PERMALINK

I'm not a lawyer, but I hold a US patent, numerous copyrights to my embroidery designs as well as trademarks. I've also been falsely accused of copyright violation by a huge, international corporation for some of those designs. DaimlerChrysler claimed that they had exclusive rights to the images of their cars and that I could not publish them in the media of embroidery. I had a very strong case in that my use was explicitly within the editorial and publishing use already permitted by Chrysler, not to mention protected under fair use statutes of the copyright laws as well as under the First Amendment which protects original artwork. After consulting with some IP law professors it became very clear that statute law has no place in IP disputes - it's simply a question of who can afford the biggest lawyers.

This is how it works: powerful and wealthy owners of IP use the threat of litigation often backed by boutique legislation like the DMCA to expand their property rights far beyond the original intent of the Constitution's framers (btw, the Patent & Trademark Office is one of the few Federal bureaucracies actually mentioned in the US Constitution).

Though it's true, as some posters have pointed out, that owners of IP have got to be a bit proactive in order to prevent their property from sliding into the public domain (e.g. 'genericide' as in how Formica Corp. lost the trademark to the word formica), that's often a smokescreen for intimidation and overreaching.

In my case, since I couldn't afford to litigate with Chrysler I decided to take a different tack. I called up my local paper about doing a 'big guy picking on little guy' story in their Sunday business section. I was also sure to point out to the reporter that it was ironic that a company whose corporate parent just paid $1 billion into a special fund because they enslaved Jews during the Holocaust would pick on a small business that made Jewish ritual items. Not that I thought they were singling me out for that reason, God forbid, no, just that it was "highly ironic".

Since I live in the Detroit area, the local paper was the Detroit News and I'm guessing that the folks in Auburn Hills were not pleased when the story broke with this lede: "For the past seven years, Ronnie Schreiber has operated a small, custom-embroidery business called Rokem Needle Arts, working primarily with symbols and lettering related to the Jewish faith." It went on to describe how I was contacted by "a licensing agent for the Chrysler Group of Auburn Hills, a unit of DaimlerChrysler AG." Personally, I think the "AG" part was a nice touch to remind folks that it was German company.

Two days after the story appeared, their licensing company said that "after consulting with their client" they wanted to offer me the opportunity to be licensed. I responded by saying that though I was not legally obligated to do so, I was interested in such a license becaue there were marketing advantages to do so and that I'd get back to them. It's been about nine months and they never sent out a cease and desist letter.

The problem with socialism is socialism. The problem with capitalism is capitalists. Rich and powerful owners of IP, liberals and conservatives alike, will almost always claim more than the law allows them.

In the case of the DMCA, the fact that there are powerful entities like computer technology firms whose business can be threatened by provisions of the DMCA means that the playing field is a little more leveled, but usually it's the guy with the biggest lawyers who wins - usually before it ever gets to court.

Posted by: ronnie schreiber at March 14, 2004 10:29 AM | PERMALINK

Bush lied, the web posting died - well actually he didn't and posting was reborn

Posted by: mhw20854 at March 14, 2004 11:41 AM | PERMALINK

I never liked DMCA much in the first place, but is this really true? All you have to do is make a complaint and a website is shut down for 10-14 days?

Not quite, but close in effect. On receipt of a DMCA demand, a service provider can either shut down the site for a given period, or not shut it down. They're not legally obligated to do it.

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