DMCA Misused Again

from the destroy-everything dept

Yet another example of just how bad the DMCA is, and just how quick companies are using it to smash up anyone who does anything even remotely “against” them. A small ISP that hosted a group of artists is about to be forced offline thanks to Dow Chemical lawyers wielding the DMCA. Some of the folks (RTMark, for those of you familiar with them) who use the hosting company, The Thing, posted a parody about Dow Chemical. Parodies, of course, are protected against copyright claims, but that doesn’t seem to stop lawyers at big companies. So, the lawyers went screaming to Verio, who gives connectivity to The Thing. Verio, in turn, shut down all of The Thing until the parody was removed, and now said they’re turning them off completely. That’s right. A single parody and lawyers using the DMCA are shutting down an entire hosting company and all of the sites it hosts. What a great law.

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Comments on “DMCA Misused Again”

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reader says:

Re: !!!

Anyone can use any law to threaten and ISP or otherwise harrass an artist. What we need are a few artists willing to stand up for their first amendment rights – which, while guaranteed by the First Amendment to the U.S. Constitution – still must be fought for when they are threatened.

I say to the artists: Get some backbone, quit whining, and sue.

Steve says:

Awful summary--Read the actual article

This is was the worst summary of an article I’ve read here, I’m really disappointed. It’s one thing to try and rally support against the putrid DMCA, but twisting a case that has little to do with it and completely mischaracterizing an article just hurts the cause.
Apparently a fake press release was sent to hundreds of people. It had quotes from the President of Dow saying the company was not concerned about the gas leak at the Union Carbide plant in 1984 that killed thousands, then linked to the Dow parody website. As far as I’m concerned, given the seriousness of the topic, unless the fake press release was blatantly obvious that it wasn’t actually from Dow, those responsible should be in trouble. If you quote some one as saying something they didn’t say, unless its clearly parody, that’s libel. And tasteless at that. I’m betting the press release was made to look very authentic in order to have greater impact–strike one.

And further in the article, it explains that the activists involved, Yes Men, registered the domain “” in the name of the James Parker, the son of former Dow CEO Michael Parker and even put down his real address because they thought it would be funny. That’s clearly not parody, that’s falsifying information on a contract and not funny or legal. He found out about it, and legally took the domain according to ICANN policies. That’s strike two.

Looking at the parody website and comparing it to the actual Dow Website it looks way too much like the real thing to be classified as a parody in my book. I like parodies as much as the next guy (and rarely take the side of the big company on most topics) but c’mon this is crap. It is so identical to the actual site, it clearly is trademark infringment. To some one who doesn’t have the two side by side, there is almost no idication that it’s a parody or anything but the legitimate Dow website. It’s not funny, and seems obvious to me that the intent is not to at all to parody Dow but to slam the company and make it look bad. But you can’t use a company’s name and trademarks and represent it as your own in order to do so. The thing to ask is “Would a reasonable person who came across this website believe that it is Dow’s official website?” If they want to put up a website and slam Dow and their policies or whatever, they’re free to do so, so long as they don’t pretend that they’re actually the company. They even ripped off the image files rather than creating their own for crying out loud. Strike Three.

Mike (profile) says:

Re: Awful summary--Read the actual article

All good points. However, I still think this is pretty clearly parody, and the fact that they’ve used the DMCA to SHUT DOWN AN ENTIRE ISP seems a bit excessive, yes?

On your second point, if they are to get in trouble for falsifying information, then get them on that – not on a DMCA claim.

Steve says:

Re: Re: Awful summary--Read the actual article

Agreed, I don’t want to see any use of the DMCA even if I happen to agree with the outcome (which in this case I do) because any use gives it more teeth and sets precedent. There are plenty of existing laws that can judiciously be applied to the web – just like there doesn’t need to be laws banning talking on a cell phone while driving when “inattentive driving” laws apply just fine. In this case, Trademark infringement is the law that applies and there’s absolutely no reason for the DMCA to come into play.

You and I definitely have a different opinion on whether it’s clearly parody or not–it’s entirely possible that I’m just not getting it–but this just takes me back to the standard the courts have established in regards to parody with trademark usage. Let me ask you this: if you showed the website to 10 reasonable people, how many of them do you think would believe it’s an official Dow website? I would bet at least half would.

I still believe that this was done out of malice–political commentary and activism against the company could be just as effective, if not more so by a website that does not look identical to Dow’s. They could have created a logo that looked similar to Dow’s and their political commentary would have been every bit as clear–but not only did they use a logo that looks identical, they literally used the exact same *.gif file. They presented their message like it was actually coming from Dow and knew full well that a lot of people would believe it.

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