At that point, Cox took to the blogospherefor help and advice. He soon received offers ofpro bono representation. While his attorney,Ronald Coleman, prepared a response to theTimes’ demand, Cox took down his parodycorrections page to avoid having his entire siteshut down by Verio.Coleman’s reply to the Times expressedamazement that the paper could have “a goodfaith belief that our client’s web page was notprotected by the First Amendment as a parody.”He quoted the Times’s own impassionededitorial three years before, defending thenovelist Alice Randall’s race-sensitive reworkingof Gone With the Wind in her novel The WindDone Gone. 213 Citing the Supreme Court’s “Oh,Pretty Woman” decision, the Times had writtenthat Randall’s novel necessarily “requires someborrowing from the original,” and that “in anera when media conglomerates control the rightsto vast amounts of intellectual property, routineelevation of copyright to a right of censorshipcould easily squelch active debate and criticismof important ideas.” 214 Within hours of receivingthis letter, Cox says, the Times announced that itwould withdraw its complaint.In the end, Cox agreed to put a sentenceon his corrections page making clear that itwas a parody. In March 2004, the Times announceda new policy requiring corrections ofop-ed columns. Cox told us that the experiencemade him realize the need “to organize othercitizens and journalists to resist efforts by anytype of government or organization to shutdown speech they disagree with.” With colleagues,he created the Media Bloggers Associationas a means to organize and provide legaldefense. 215Mastercard’s Priceless ImageBrian Martin operates Attrition.org, anacerbic Web site “dedicated to the collection,dissemination, and distribution of information”about the computer security industry. Amongthe humorous image galleries and spoofs onthe site are several, contributed by readers andfans, that parody MasterCard International’sadvertising campaign using the phrase, “Priceless… There are some things money can’t buy; foreverything else there’s MasterCard.” 216In June 2001, Martin received a cease anddesist letter from MasterCard claiming exclusiveownership of the “Priceless” trademark andaccusing Attrition.org of “blatantly” copyingthe style of the “Priceless” ads in a manner thatwas not only infringing, but “often obscene.”The letter demanded prompt removal of thematerial; “otherwise, MasterCard will have nochoice but to consider legal action.” 217Martin publicized the threat in a mood,as he told us, of “hey guys, get a load of this– what are they smoking?” A few of the lawyerson his email list told him that Attrition was“on solid ground,” but he did not engage legalcounsel. Instead he replied, based on his ownresearch, that MasterCard’s trademark claimwas groundless because there was no likelihoodof confusion; and its copyright claim wasequally bad, because parodies are protected asfair use. 218 MasterCard took no further action,and the ad spoofs remained up for more than ayear.Martin commented: “the biggest irony is thatthe legal pressure created negative publicity,”and “has only spawned more parody,” yetMasterCard “still sends out those C&D letters.”He has received emails from other recipients“to find out how I responded to this. I toldthem not to back down; they didn’t have to.I did say that I was not a lawyer, but based onexperience, they had good cases.”“This kind of issue needs exposure,” heconcludes. Corporations are “trying to pressurepeople, trying to use scare tactics and legaltricks.” In early 2005, one Priceless parodycould still be found on the Attrition site. Theimage showed a youth thumbing his noseat an overweight police officer. The captionread: “Thumbing our nose at your pompousbullshit: PRICELESS. There are some thingsonly hubris can buy. For everything else,there’s Attrition.” 219Latter-Day SaintsRoger Loomis, a former Mormon, established“www.LDS4U.com” as an “unauthorized investigator’sguide to The Church of Jesus Christ ofLatter-day Saints.” The site is not hostile to theChurch, but includes discussion and analysis;it seeks to “fairly present both sides and let the42 Will Fair Use Survive?
eader arrive at his own conclusions.” 220 Until2002, it included excerpts from six official Mormon“missionary discussions.”In July 2002, Loomis’s ISP received a takedownletter from Intellectual Reserve, Inc., theowner of the Church’s missionary discussions.The ISP forwarded the letter to Loomis,directing him to remove the items “ASAP.”Loomis replied directly to the Church’s attorney:“It is my personal belief that these pages werenot copyright violations, but I will go ahead andremove them from the Internet as you requested.”Two months later, the attorney demanded thathe remove three images as well, one of JosephSmith, the Mormons’ founder; another of goldplates (important icons in Mormon doctrine),and the third of Gordon Hinckley, the currentChurch president. 221 Again, Loomis complied.When we asked why he acquiesced,Loomis told us that it was easier to removethe material than to get into a “big battle,”especially since he was worried about payingIntellectual Reserve’s legal fees if he receivedan unfavorable ruling. The risk of moneyliability was not worth the “emotional timecommitment.” At the same time, he thoughtthat he had a fair chance of prevailing if hehad been able to afford a good attorney.Durango BillBill Butler operates www.durangobill.com(“Durango Bill’s Home Page”), a collectionof information on subjects ranging frompaleography, the Grand Canyon, number theory,and “the fallacies of Creationism and ‘IntelligentDesign Evangelism’” to a description of waysto “fight back against DMCA abuse.” In July2004, Yahoo, Butler’s ISP, received a take-downnotice asserting that durangobill.com was usinga logo from Online Christ-Centered Ministries(OCCM) on a Web page titled “Durango Bill’sExample of a Typical Young Earth Creationist.” 222The page critiqued Jason Gastrich, a Creationistand the apparent proprietor of OCCM. Theirdisagreements ranged from Butler’s accusationthat Gastrich faked his educational credentialsto an exchange regarding Gastrich’s claim thatthe Colorado River flows uphill. 223In response to the take-down letter, Yahoosent Durango Bill a “Notice of Infringement”instructing him to remove the “Jason Gastrich”page or else Yahoo would shut down his site.Over the following days, Butler repeatedly tried,without success, to contact Yahoo to determinewhich parts of the page he could delete tocomply with the notice. On July 23, his site wasshut down. Three days later, he was finally ableto reach someone at Yahoo, and was allowedto delete the Gastrich page and post a noteexplaining what had occurred.Attrition's “Priceless”’ Parody, by Brian Martin/Image by Jay DysonMeanwhile, Butler found a Web site thatprovided a sample DMCA counter-notice. 224He used the sample to compose a response toYahoo asserting that his Web site was withinfair use. Under the law, Yahoo now had to allowhim to re-post his Web page, unless Gastrichfiled a lawsuit against him. On August 4, 2004,Gastrich did sue, in California federal court.Butler retained a lawyer, who moved todismiss Gastrich’s complaint on the ground thatthe federal court in California had no jurisdictionover him. (He operates his Web site from hishome in Colorado.) The motion succeeded inDecember 2004. After nearly six months, Butlerwas able to restore his “Jason Gastrich” page.“Folded Up Like a House of Cards”Artist Dee Dreslough was a devotee ofscience fiction novels by Anne McCaffrey – theDragonriders of Pern series, Renegades of Pern,Planet Pirates, and many others. In the mid-1990s, Dreslough created a Web site and begantaking commissions for original works of art. Atthe request of fellow McCaffrey fans, she drewdragons and other characters. She told us: “Idrew pictures of people and dragons inspired byBrennan Center for Justice 43
- Page 1 and 2: WILLFAIR USESURVIVE?Free Expression
- Page 3 and 4: WILLFAIR USESURVIVE?Free Expression
- Page 5: ContentsExecutive Summary . . . . .
- Page 9 and 10: unhappy years of World War II.” 1
- Page 11 and 12: Although §512 does allow an ISP
- Page 13 and 14: music, distance learning, interlibr
- Page 15 and 16: CHAPTER 1The Legal LandscapeThis ch
- Page 17 and 18: Court’s “Oh, Pretty Woman” de
- Page 19 and 20: the public would be confused about
- Page 21 and 22: CHAPTER 2Quoting Sartre, Using Prok
- Page 23 and 24: owned by Gallimard [the French publ
- Page 26 and 27: well, this and this person gave it
- Page 28 and 29: you can do with the pages of Time a
- Page 30 and 31: going to start writing letters for
- Page 32 and 33: causing problems for our communitie
- Page 34 and 35: or Not’ people. So we took it dow
- Page 36 and 37: The American Pool Players Associati
- Page 38 and 39: “Paris Hilton Sex Tape” 150 (ho
- Page 40 and 41: howardhallis.com,” a comedy and c
- Page 42 and 43: legitimate borrowing of protected m
- Page 44 and 45: Dan Hamilton, managing editor of th
- Page 46 and 47: legal action as long as eInfoworld
- Page 50 and 51: her books, but not created by Anne
- Page 52 and 53: CHAPTER 5Internet Infidels and Home
- Page 54 and 55: she attributed to the many form let
- Page 56 and 57: “Without his permission, the gove
- Page 58 and 59: eproducing an artwork in a book wit
- Page 60 and 61: ConclusionWhat can we learn from th
- Page 62 and 63: Reiff thought that instead, the gov
- Page 64 and 65: Endnotes1 Mattel v. Walking Mountai
- Page 66 and 67: 48 See Katie Dean, “Eyes on the P
- Page 68 and 69: 109 Not an exact quote. See Alan Al
- Page 70 and 71: 149 http://msophelia.blogspot.com/p
- Page 72 and 73: 215 “MBA Legal Defense Initiative
- Page 74 and 75: lank left hand page
- Page 76: 161 Avenue of the Americas12 th Flo