April 27, 2000

8:44 AM

Well, that didn't take long...Associated Press just dropped a "cease and desist" on the Elian-Wassup movie. Damn! The thought police are getting faster and faster these days.
posted by ratbastard (36 comments total)

Umm... FAIR USE, anyone? Something is simply going to have to be done about the corporate copyright fascists. This is really getting out of hand.
posted by CalvinTheBold at 8:54 AM on April 27, 2000

I wonder if the parody exception applies here. I can't see why not.
posted by ratbastard at 9:21 AM on April 27, 2000

It's still up at:

http://www.newgrounds.com/portal/view.php3?id=266

I agree with Don - the parody exception would seem to be pretty square on this one. Everyone better make your copies now.

Mike, still in avoidance mode
posted by mikewas at 9:27 AM on April 27, 2000

Let's make it a link:

http://www.newgrounds.com/portal/view.php3?id=266

posted by mikewas at 9:28 AM on April 27, 2000

(disclaimer: not a lawyer) Seeing as the note was not from a lawyer, it is probably just a scare tactic. And the parody exception might or might not apply (it's not really a parody of the AP pictures, it's a parody of the Bud commercial), but the pictures still might be usable anyway as appropriated art. In the name of art, you can do just about anything with anything.

Of course, they can still sue and make the authors' lives a living hell.

The lesson here remains: you can't put the cat back in the bag.
posted by jkottke at 9:42 AM on April 27, 2000

Send Dave an email telling him he's a wet blanket or give him a call, [phone].

I just hope he's able to get his work done hunting done violators, what with all the emails and phone calls.
posted by Mick at 9:48 AM on April 27, 2000

Or better yet, sign up for a dozen free accounts at Fax4Free.Com and queue up a dozen messages for him on each one, then you don't have to use your own time/tel-line to get the message through.

Assuming of course that the Dave-mail is real....

posted by nomisxid at 10:01 AM on April 27, 2000

I remember at SXSW this year, a lawyer in the audience at the "Cease And Desist" forum recommended that it's not worth going head to head with big companies over stuff like this. But I wonder...if this had been any other medium, would they have acted so quickly? If this had been a painting, sculpture or any other art form that uses "found" media, would they have even cared? I dunno, but it bothers me.

We can debate it forever, but it bothers me that this thing was assailed and taken down with the same frightening speed with which it went around the world. Talk about accelerated culture.

Dave Tomlin, what a wet blanket.
posted by scottandrew at 11:05 AM on April 27, 2000

Anyone want to start an eviltoy-like support group to deal with situations like this one?
posted by scottandrew at 11:18 AM on April 27, 2000

Egads! The man is not only not a lawyer, but seems to be or at least was, going on this, the "Director of Technology Marketing". They really shouldn't let these people on the internet. :>
posted by Sapphireblue at 11:19 AM on April 27, 2000

Why do you suppose Mr. Tomlin hasn't contacted the "Fisherman" to complain about his use of the picture?
posted by iceberg273 at 11:28 AM on April 27, 2000

... sent a note to the nice people who brought us this meme, and got this autoresponse:

Dear Adoring Public:

We have been aware of the parody thing since the get-go. We decided to remove the movie in favor of Mr. Tomlin's letter to let everyone else in on what was going on. Rest assured, the clip still exists (it's easily the best thing either of us idiots has ever done, so we'd never destroy it) and it will again bubble up to the surface of the information superhighway before long. In the meantime, log on to www.playboy.com after 4 p.m. Central Time to read more about our trials and tribulations. Oh, yeah -- there are pictures of naked ladies on that site, too.
posted by Sapphireblue at 11:28 AM on April 27, 2000

Anybody know how high the hit count got before AP sent the letter? I'm surprised that Geocities didn't freak and pull the site.
posted by iceberg273 at 11:32 AM on April 27, 2000

>Anyone want to start an eviltoy-like support
> group to deal with situations like this one?

Steve, I think that's a great idea. I've been thinking about doing the same thing ever since the Simply Porn fiasco.

The way I see it, such a group would do three things:

1. Propagate copies of threatened websites all over the web, just like Peterme.com did with Simply Porn. That way, the people who made the websites are able to comply with a cease-and-desist order, yet the material itself remains out on the web, and even more wide-spread than before.
   
   Kinda the whole, "I am Spartacus." defense.
   
   
2. Coordinate phone, fax, and email campaigns against the companies that are prosecuting. This could involve posting relevant contact information on the site, sending action alerts to members, and providing simple "your name goes here" form letters that visitors can send with a single click.
   
   
3. Most importantly, we'd be fighting by our own rules, not theirs. We might not have the money or legal resources that the big corporations have. And true, they might be able to shut down one site hosting a parody.
   
   But they might think twice before spending the time and resources it would take to shut down 20 sites hosting the same parody.

Sorry to ramble on for so long. But this is something I've been thinking about for a while.

Comments? Critiques?
posted by ratbastard at 12:19 PM on April 27, 2000

mmm... smells like something rtmark would like.

The methods look sound, but wouldn't a central organization get nailed to the wall for encouraging illegal activities?
posted by stilton at 1:36 PM on April 27, 2000

I'm so with you, Don. In fact that's why I wrote the guy... to ask if he had any objection to my doing that very thing.

If they host on GeoCities and GeoCities shuts them down out of fear, there's not a lot can be done there. But I pay for my hosting so hopefully a little more protection... and I bet we all know a number of s00perl33t types with their very own servers, making it even harder to control content like this.

But I fear that the legal system will start to get better at responding to these lightning-fast organizations of intellectual-property civil disobedience. If I recall properly, both of the messes over cphack and DeCSS were notable for the speed with which legal action was taken and for the sheer scope of the legal threats: they weren't aimed only at the writers of these tools, but at an open-ended everyone who might be thinking about uploading/linking themselves. It can't take long for lobbying groups on the side of the copyright police to convince legislatures and judges all over the country that the only possible way to combat this incredibly networked community of outlaws is to pass new laws which take 'right to a speedy trial' to absolutely Draconian extremes.

Still, I'm up for it. I've got the Flash for Elian/True and I've got my very own copy of cphack.exe to throw into the pot... and am *always* ready to stir up a lil trouble :>
posted by Sapphireblue at 1:44 PM on April 27, 2000

That's the most ratbastardly idea I've heard in a long time, RB. I love it. The Grassroots Action Team. Piss us off, and we'll pull a GAT on you.

Anyone wanna design the logo?
posted by baylink at 1:53 PM on April 27, 2000

Michelle, can you post a link to the flash files? I'd mirror a page like I did for Simply Porn. One person would just have to keep track of everyone that was mirroring.
posted by mathowie at 1:57 PM on April 27, 2000

> wouldn't a central organization get nailed to
> the wall for encouraging illegal activities?

If we were to create such an organization (eliantrue.com?) we'd have to choose our fights very carefully.

We'd want to be reasonably sure that the parodying site was operating in accordance with the Fair Use clause, and that the corporation in question was just being mean. (e.g. Meat of the Loom)

On the other hand, if the parodying web site were in a position to profit from its mis-use of a corporate trademark, or operating outside of the protection of Fair Use, then I wouldn't touch 'em with a barge pole.

Any lawyers in the house?

Oh, and Michelle, I'd happily join you in getting the wheels turning this weekend, but alas, I'm getting my wisdom teeth removed.
posted by ratbastard at 2:03 PM on April 27, 2000

My mirror is here. And I'm urging people to do the same on kottke.org.
posted by jkottke at 2:10 PM on April 27, 2000

I would suggest not makeing your circle of mirror sites centralized. Then they would only have to look one place to find out where send their letters. Keep it informal and they'll have to search the whole net. Make it expensive to find and contact everyone. Make it easy to download.
posted by y6y6y6 at 2:11 PM on April 27, 2000

Respectfully, I disagree, y6.

The suits didn't do that with Simply Porn. Peter Merholz has had his list of mirrors up for more than a year. And as far as I know, not one of the sites listed have been contacted by 3-Com. And the sites are still up.

Jason, correct me if I'm wrong on this.
posted by ratbastard at 2:15 PM on April 27, 2000

>I would suggest not makeing your circle of mirror sites centralized.

Yes, this is totally the way to go. And just to let people know, if they send me a letter, I'll totally take it down (much too busy to fight this thing, but just enough free time to start some shit)....but they can't get everybody.
posted by jkottke at 2:15 PM on April 27, 2000

Precsiely. Here's the sound bite version: if they want to continue passing ridiculous laws, designed only to protect the investments of large corporations, we're going to make it as expensive as possible.

As long as legislatures keep passing laws people can't respect, and protecting corporate interests over the welfare of individual citizens, respect for the law will continue to decline, until Congress has created anarchy all by their own little selves...
posted by baylink at 2:38 PM on April 27, 2000

Precsiely. Here's the sound bite version: if they want to continue passing ridiculous laws, designed only to protect the investments of large corporations, we're going to make it as expensive as possible.

As long as legislatures keep passing laws people can't respect, and protecting corporate interests over the welfare of individual citizens, respect for the law will continue to decline, until Congress has created anarchy all by their own little selves...
posted by baylink at 2:38 PM on April 27, 2000

One last point on the centralized/decentralized topic and then I'll shuttup: If we make it difficult for the suits to find the mirror sites, how will regular audiences find them?

I'd recommend that the original owner of elian/true host the index of mirror sites. The evil corporate warlords can't attack him/her for simply linking to a site. And he's still in compliance with the cease-and-desist letter.

And like Jason said, if they send you a letter telling you to take down your mirror, do it. Somebody else will put it up for you.
posted by ratbastard at 2:48 PM on April 27, 2000

> how will regular audiences find them?
It's like a virus. Just add directions that say something like "right click to download".
posted by y6y6y6 at 3:10 PM on April 27, 2000

I guess I didn't make my point clear. I apologize.

What I meant to say was: how will visitors to www.geocities.com/elian_true learn that they can could still view the movie on another site... unless there were a link to the mirror page from the original site?

Once they're there, sure it's easy enough for them to download the file. I'm just concerned about getting audiences to your site in the first place.
posted by ratbastard at 3:20 PM on April 27, 2000

Hmmm.... Ya, I see your point. But in the email from AP they did threaten a mirror site. It makes sense that they would go after ALL mirrors.

Here's my take on this: If it gets mirrored all over the place it may get sen enough that they could some serious PR about it. But the only way that will happen is if the mirrors can stay ahead of the AP's goon squad.

So maybe they can't point traffic to the new sites, but we'll try to make it very available.

Hmmm... That doesn't sound like the right answer. I guess I just hate this situation so much that I'd rather do it the stealth way rather than see it not get out.

Little people who have few resources are being fucked by a big company that knows it can get away with this. We could win in court, but it would cost more money than we collectively have. And even then we wouldn't really win because they could just do it again to some other little people.

This is fair use and everyone knows it. Unfortunately "common sense" doesn't seem to be a popular class in law school.
posted by y6y6y6 at 4:00 PM on April 27, 2000

Linking instead of hosting is the whole crux of the latest chapter in the DeCSS legal actions. There was supposed to be a ruling on the MPAA's request to stop the guys at 2600 from even linking to it this week but I haven't heard anything yet...? Worth keeping an eye on; a ruling in the MPAA's favor would be a really ugly precedent.

Thanks Jason for posting your link... my copy is here with some slap-dash instructions on saving the movie and embedding in HTML.

I'm not 100% sure about centralizing myself. The thing to do would be to make an "Elian True" portal (heh) voluntary so people who wanna be covert about it can, but still would the portal be an irresistible target for lawsuits? It'd be a hell of a lot easier to attack the portal and kill off some large percentage of copies in one fell swoop, much harder to try to track down this organic mass of disconnected sites.

If the point is to have it instantly accessible to the masses, centralize. If the point is just to have it out there to prove a point about trying to regulate content on the internet, don't. I dunno.
posted by Sapphireblue at 4:16 PM on April 27, 2000

Keep in mind that the FreeNet project will accomplish a number of the aims stated above.

I can't believe nobody followed up with the story. The guys that did this work for Playboy, so gave them an exclusive. The AP responded in that article that they may have come down too hard, and told it was already to be ubiquitous, just shrugged.
posted by dhartung at 9:10 PM on April 27, 2000

... I can't help but wonder if the AP would have backed off quite so readily if the people they'd come down on had been a couple of "nobodies" with no ready access to the media in the form of god only knows how many page views a day.

cynical... me? only sometimes.
posted by Sapphireblue at 12:31 AM on April 28, 2000

This may seem dumb...

...but wouldn't publicly discussing the distribution of (potentially) copyrighted materials count as a criminal conspiracy?

You might want to discuss your pirate plans in *secret* next time and not leave a paper trail. ;)

P.S. One of the few funny things Dennis Miller said was about that 2 Live Crew 1st Amendment thing way back when: "Yeah, it's free speech and all...but did we have to go to the wall for 'Pop That Coochie'? Why not Zeppelin or something?"

P.P.S. To reiterate, it wasn't that funny to begin with.
posted by solistrato at 7:41 AM on April 28, 2000

there's all kinds of electronic "paper trails" that get left every time you make a move on the net. I could go to all kinds of paranoid extremes to hide my IP address, dissociate all referers from the pages I visit, come up with webspace attached to a bogus identity and/or credit card... but I'd rather have a life and a name and a face, personally, and rather than go underground and do only as much fighting for my rights as I can do without having an identity, I'm more the sort to stand proud and confrontational in the face of Stupid Government. I think in the end it does more good, just generally, to register a protest under your own identity than to be some nebulous maybe-person with an objection. Phantom constituents probably don't have a lot of pull.
posted by Sapphireblue at 9:53 AM on April 28, 2000

Hey! If Kottke, RatBastard, and Playboy can run this movie.... then SO CAN I!

Voila!

WHEEEE! I haven't had this much fun since the etoy saga!

I get a Cease & Desist... fine. I'll take it down.... but not before a few people understand WHY
posted by EricBrooksDotCom at 9:04 AM on April 29, 2000