Using Copyright to Censor Parody
Friday, October 23rd, 2009 by Harry LewisThe Digital Millennium Copyright Act is the gift that keeps on giving. It is the Swiss Army Knife of laws. Every time you think you’ve seen a pattern in the ways it is misused, somebody comes up with a new idea. It was once subtitled “An Act for the Encouragement of Learning.” The encouragement was provided by a temporary monopoly on intellectual works, to give the creator an incentive to create them. Now it is, among other things, a handy tool for censoring those who make fun of you.
Today’s complainant is the U.S. Chamber of Commerce. On Monday a group of prankster environmental activists managed to stage a fake press conference, right in the Press Cub in Washington DC. A few members of the actual press were joined¬†for effect¬†by some hoax journalists. The hoax Chamber of Commerce announced that it had decided that climate change was, after all, a problem that could not be solved by cap and trade legislation and a carbon tax was the way to go–a position opposite to that espoused by the real Chamber of Commerce–which broke into the meeting, causing some shouting and mayhem.
Having regained its composure, the Chamber of Commerce now moves against the fakers, known as the Yes Men. The Chamber wants the Yes Men’s web site shut down for copyright violation—it is, to be sure, a pretty good look-alike of the real site. But that is what parody is—it’s a fake for humorous or critical purposes. Parody is legally protected.
Unfortunately, the takedown provision of the DMCA protects the ISP from liability only if it pulls the allegedly infringing material while the parties sort out their dispute. The Yes Men have the same gripe that John McCain had when a TV network demanded that YouTube pull an ad because it contained a short clip of an evening news anchor. The anchor was complaining that the press were mean to Hillary Clinton; McCain wanted in a sarcastic way to make the same point about the press treatment of Sarah Palin. Perfectly reasonable, but YouTube took the video down to protect itself.
In this case, the fake web site quickly got reducplicated–mirrored–in a way that made the censorship effort moot. And the Electronic Frontier Foundation is stepping in to help. But that is just in this case. Minor players, whom the Chamber of Commerce is actually supposed to help, might not have the same opportunities.
October 23rd, 2009 at 6:11 pm
Wikipedia says ‘A parody (pronounced /Ààp?¶r…ôdiÀê/; also called send-up or spoof), in contemporary usage, is a work created to mock, comment on, or poke fun at an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation.’
While I’m no fan of DMCA, I must say that this “parody” suffers from looking too little like spoof and too much like simple misrepresentation.
Where’s the indication – subtle or not – that this is a send-up? In the footer, which claims that the page is copyrighted by the real Chamber at the real Chamber’s real address? In the meta text? In some clever misspelling? In a clever play on words in the “parody” domain name?
Sorry, I’m afraid I can’t agree with you, or the EFF, this time. This is just a clumsy lie.
October 23rd, 2009 at 10:16 pm
Let’s remember Lehman Brothers, a committed, solid member of this Chamber, who in the interest of short-term gain scuttled a century. They ate lamb, but were left without wool when the cold, hard winter set in.
We must learn from the past, so that we can manage the future.
Climatologists tell us that if we don’t enact dramatic reductions in carbon emissions today, within 5 years we could begin facing the propagating feedback loops of runaway climate change. That would mean a disruption of food and water supplies worldwide, with the result of mass migrations, famines, and death on a scale never witnessed before.
Needless to say, that would be bad for business.
Did you really fall for that, without any head-scratching?
Do you really want the federal judiciary drawing that line?
October 26th, 2009 at 3:22 pm
Did I fall for that? No, I used the term “clumsy lie” advisedly.
Do I really want the Federal judiciary drawing that line? Frankly, enforcing copyright is one of a handful of things that I’m in favor of them doing.
Had these kids spent a little time and creativity turning their stunt into a real “parody” complete with those subtle and clever twists on their planned victim’s intellectual property, I’d be lined up solidly with the forces of light and “free as in beer.” But they didn’t.
IMHO.
October 26th, 2009 at 3:38 pm
And, having said that, I have to admit that you have a case, too.
The text was silly, and that may be all that is necessary to qualify as parody today – you’re the experts on post-digital sensibilities.
I looked at the graphics, at the page source, and it smelled of phishing – or copyright violation.
I’ll be interested to see where this thing goes – this is David, signing out.