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Posted on Techdirt - 28 September 2013 @ 12:00pm

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from the streisand-effecting dept

Hi.* I write about free speech and the internet on a poorly-named blog. That means I mostly write about revenge porn, Prenda, and vexatious trainwrecks.

The thing I like most about Techdirt is its commitment to covering stories at the same intersection: free speech and technology. Often, these stories involve rights owners overzealously seeking to protect an interest that isn't really being harmed. The predictable result is that the rights owner comes to its senses and backs down, but only after earning a new reputation: being wrong and a censorious thug. Thankfully, Techdirt is here to document and further these hard lessons in the Streisand Effect.

And so it was with This Charming Charlie, a mashup of the misanthropic lyrics of The Smiths and the aw-shucks renderings of Charles Schultz. The pairing was a hit. Of course, in swept Universal Music Publishing Group to pull the football away, leaving DMCA takedown notices in its wake. The complaint? That Charming Charlie was infringing upon the copyright in the lyrics of The Smiths by using lyrical fragments. Perhaps Universal wants to keep the lyrics intact and in full, or maybe they prefer to leave sleeping dogs lie, as the lyrics utilized by Charming Charlie aren't all that hard to find.

Whatever their rationale, it's dubious that Charming Charlie was impacting sales of The Smiths records, except perhaps to increase them as nostalgic Charming Charlie readers reminisce, or as new audiences are introduced to Morrisey's pre-emo complaints. While there is a certain argument to be made that Universal had a colorable copyright claim -- although it's not an argument I agree with -- the risk to Universal's reputation was more than any possible reward, statutory damages notwithstanding. Record labels don't earn much goodwill among artists, after all, by threatening artists. Fortunately, after intervention by Booth Sweet, perhaps some consideration of Fair Use, and some negative attention from the LA Times, Universal backed down.

Of course, the Charming Charlie episode wasn't intended to silence a critic, but instead a misguided attempt to protect intellectual property rights. It's even more disastrous when you use the DMCA to target speech. Upset people are quoting your speech and criticizing it as racist? Bring in the DMCA! And, while you're at it, unnecessarily reveal your censorious justification: "Your hosting customer [...] decided to embarrass Oliver Janssens in the worst and most effective way - by words out of his own mouth." And so shall ye conclude every prayer to Her Highness Streisand whenever ye shall invoke her Mysterious Effect.

Meanwhile, in Russia, recent legislation prohibiting material which would promote the dreaded homosexual lifestyle to children (that, after all, is the goal of gay rights activists: making sure that children, and not society as a whole, think that they're people deserving of equal rights and basic human respect) has finally found some material targeting children to censor. Except that the intended audience isn't children at all, because it's a satire intended to mock the legislative windmill tilting. As a result of attempting to suppress satire, greater attention is paid to the work as it spreads on non-Russian sites, and the target audience is reached. So, please, Russia, continue to use censorship to broadcast the messages you dislike.

British airliner EasyJet learned a similar lesson this week when it attempted to boot a passenger over a critical tweet. Of course, EasyJet -- a private company -- likely has the legal right to only accept passengers that don't criticize it, but is it worth it? While the company is apparently efficient enough to track critical tweets, identify the passenger, and communicate this grave threat to its reputation to employees at the gate, it lacked the foresight to realize that someone who tweets criticism will probably also tweet more irately when the airline overreacts to said criticism. The best way to salvage a bruised reputation is to stop doing things that hurt your reputation, like intimidating critics. It carries no reward and carries only higher costs.

Finally, in a different vein, a patent troll got a judicial sham-wow cleaning over its sham company, whose "director of business development" was really a landlord overseeing an "office" consisting of a windowless "closet" in East Texas. Why? Because patent trolls love to litigate in East Texas, where statistics suggest they have a significantly greater chance of success. So, if you just need to establish jurisdiction in the eastern district of Texas, do it cheaply. But, as Prenda is learning (and, yes, I'm giving the benefit of the doubt and assuming Prenda has learned something), make sure the owners of your intellectual property can't be perceived as a sham.

*("Hi"? That's your catchy introduction? Shouldn't you be learning how to tie your shoes or something?)

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