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CHAPTER 4Parodies, Critiques, and “Pet Friendly”Web Sites: The Telephone InterviewsAt our request, Chilling Effects askedthose depositors who had left contactinformation if they would participatein telephone interviews. Seventeen peopleresponded, and from late 2004 through early2005, we interviewed them in order to learn abouttheir knowledge of fair use, their reactions to thecease and desist or take-down letters, the finaloutcome of the controversies, and their feelingsabout the experience. Although our intervieweesrepresent a small sample, their experiencesillustrate a range of free expression conflicts.Twelve of them published commentary, news, orother information – in five cases, critiquing theindividual or organization that complained ofinfringement. Three others ran small businesses;two ran fan sites.Of the 17 controversies, seven involvedcopyright; seven involved trademark (includingdisputes over a domain name); and three involvedboth. Ten of the interviewees were confrontedwith cease and desist letters; four were subject toDMCA take-down notices; two were the targetsof both; and one received an invoice for using “asubstantial amount” of an article.Twelve were aware of fair use; five were not.Of the 12 who knew about fair use, five had abasically accurate understanding of the concept.Six were partly accurate; only one was seriouslyoff the mark. He said: “If something is in thepublic domain, you can use it as long as you don’tprofit from it. If it is privately owned, you needto seek permission to use it for any purpose.” 186Thirteen of our interviewees consultedlawyers, but only six retained them. Three of thelawyers worked pro bono; another was paid bya trade organization; and one managed to winthe case for the modest fee of $1,000. Of thosewho did not retain lawyers, the most commonreason, not surprisingly, was cost – not onlylegal fees, but the possibility of having to pay ajudgment if they lost the case. Other significantconsiderations, cited by seven interviewees, werefear, intimidation, and the emotional cost ofdefying an IP owner.We thought that seven of the cease and desistor take-down letters stated weak copyright ortrademark claims. In another five cases, therewere strong or at least reasonable fair use or FirstAmendment defenses. Another four intervieweeshad possible arguments against the claims in theletters. Only one clearly had a losing case.But despite the overall weakness of the claimsmade in the letters, five recipients acquiesced.(All of them felt that had they chosen to fight,or been able to afford an attorney, they wouldhave had a better outcome.) One lost his case;one settled; and two had their posting or linkremoved by an ISP. Two others who were targetsof take-down letters removed the challengedmaterial temporarily, and later were able toreinstate it. In total, nine of the 17 had theirmaterial suppressed, even though 12 of them hada strong or reasonable defense, or received letterswith dubious IP claims. Although the sampleis too small and self-selected to be scientific,it shows a substantial chilling effect from bothcease and desist and take-down letters.Weak Copyright orTrademark Claims 187Protecting the VoiceThe Cape Cod Voice, a fortnightly regionaljournal, received a cease and desist letter in June2002 from New York City’s Village Voice, assertingboth trademark infringement and dilution. Theletter concluded: “We hope to resolve this matteramicably … Our previous experience with theBloomington Voice, Dayton Voice and TacomaVoice newspapers – each of which successfullychanged its name after our client raised trademarkinfringement concerns with them – indicates thatwe can accomplish this goal.” 188Brennan Center for Justice 37