Dow Fights Parody Site

December 29, 2002 11:59 PM

Dow Chemical takes over a parody siteLong time reader, first time poster... So what's the lesson learned here? If you make a parody, don't register your domain with a faked name?
posted by mhh5 (18 comments total)

Actually, the repercussions have been a little more severe than just Verio taking the parody site down.

Bowing to pressure from the Dow Chemical Corporation, the internet company Verio has booted the activist-oriented Thing.net from the Web. Thing.net has been the primary service provider for activist and artist organizations in the New York area for 10 years.

On December 3, activists used a server housed by Thing.net to post a parody Dow press release on the eighteenth anniversary of the disaster in which 20,000 people died as a result of an accident at a Union
Carbide plant in Bhopal, India. (Union Carbide is now owned by Dow.) The deadpan statement, which many people took as real, explained that Dow could not accept responsibility for the disaster due to its primary allegiance to its shareholders and to its bottom line.

Dow was not amused, and sent a Digital Millennium Copyright Act (DMCA) complaint to Verio, which immediately cut Thing.net off the internet for fifteen hours. A few days later, Verio announced that Thing.net had 60 days to move to another provider before being shut down permanently, unilaterally terminating Thing.net's 7-year-old contract.

Affected organizations include PS1/MOMA, Artforum, Nettime, Tenant.net (which assists renters facing eviction), and hundreds more.

Thing.net assistance page: (Should you be so inclined) https://secure.thing.net/backbone/
posted by dejah420 at 12:42 AM on December 30, 2002

How on earth is the DMCA supposed to work with a case of parody (even if it's not ha-ha funny, but aimed at making the company look bad)?
posted by mathowie at 1:09 AM on December 30, 2002

I don't know if the DMCA was even necessary. IANAL, but I'm pretty sure it's long established that it's illegal to use a company's name if your operation might be confused by the public with that of the company that owns the trademark. For example, you can have a McDonald's Auto Parts store (no one is going to think you are subsidiary of Mickey D's), but not a McDonald's Fried Chicken outlet.

These guys used a website called Dow-Chemical.com, registered it under a false name, that of a relative of the company's chairman, and apparently tried to fool people into thinking it was a legit Dow site. I'm pretty sure that's illegal, has been illegal, and will always be illegal. You can't just steal someone else's trademark and try to deceive the public.

(In addition, it's a pretty sleazy way to play politics.)

If they had url'ed their site Dow-sucks.com, and registered it honestly, Dow would have no complaint. Oh, maybe they'd have a complaint, but they wouldn't be able to do anything besides gripe.
posted by Slithy_Tove at 2:34 AM on December 30, 2002

Slithy, you contradict yourself. The site which can be seen at several places including Dowethics.com uses Dow's style, logo etc. Parody? perhaps, in the sense of the contents being:

Something so bad as to be equivalent to intentional mockery; a travesty: The trial was a parody of justice.

The attempt is clearly to sully the Dow name and IMO would fall under dissolution(sp?) of trademark.

But then IANL.
posted by DBAPaul at 3:40 AM on December 30, 2002

DUH, IANAL.
posted by DBAPaul at 4:04 AM on December 30, 2002

How on earth is the DMCA supposed to work with a case of parody...

It doesn't matter what laws they cite. All they had to do was send a letter and they knew the service provider would flinch. They could have said "this site violates the Geneva Convention and the banned substances policy of the International Olympic Committee" and they still would have taken the site down.
posted by jpoulos at 6:33 AM on December 30, 2002

So what's the lesson learned here?
the first amendment is a fairy tale. people with money can silence you.
posted by quonsar at 6:50 AM on December 30, 2002

No sense blaming the service provider. The DMCA requires them to remove material which is alleged to be infringing, as soon as is practical. A DMCA request is not something that the ISP can take with discretion: even Google caved, if you want to put it that way.

Parody is a viable defense under copyright law, though it is widely assumed to be much more affirmative than it really is, especially when the parody is very specifically surrounding a specific work. For instance, the The Wind Done Gone case. Parody is not an affirmative defense in any way under trademark law. The copyright holder must prove infringement, but the trademark holder need only show trademark dilution (the topic of the Lanham Act, mentioned in the article, which has been around for decades). A site which explicitly claims to be the official site of a company, using its trademarked logos, making cosmetic alterations to its official website materials, is on extremely shaky legal ground no matter how "obvious" it may be to the initiated that it is a parody.

Finally, putting in registration information for the domain that essentially proves ownership by the company was simply foolish. Did they really think that would work? For longer than a week? Maybe if Dow was dumb.

I'm sorry about thing.net, of course, but they were stupid to get in the middle of this. The people at Dow weren't just pissed about being "parodied", they were probably understandably furious about being portrayed as callous. But if the Yes Men are going to fuck with people like this, they can't expect everybody else to cooperate.
posted by dhartung at 7:13 AM on December 30, 2002

the first amendment is a fairy tale. people with money can silence you.

No one would have been able to shut them down if they simply reported the incidents or had original articles, pictures, graphs etc that reported the message they wished to convey. It is the pretending to actually be the company that makes them mad. Using the logos or art directly from the real site. How many of us would be angry if we spent a lot of money and time making art for our personal websites or business and someone copied all your hard work while making fun of you?
posted by McBain at 7:14 AM on December 30, 2002

say, is that a FOX owned Simpsons character you've "adopted" for your handle there, McBain?
posted by quonsar at 7:21 AM on December 30, 2002

dhartung: The copyright holder must prove infringement, but the trademark holder need only show trademark dilution (the topic of the Lanham Act, mentioned in the article, which has been around for decades).

Actually they have to show "likelihhod of confusion," federal dilution has not been in the Lanham Act all that long (1988 I think) before that there were only state dilution claims. Dilution doesn't apply to all marks either, only "famous marks." There is disagreement between Federal Circuits as to how fame should be defined. The Victor's Little Secret case which the Supreme Court heard in October addresses another dilution question: Whether or not there has to be "actual" harm for a successful dilution claim.

As much as I find the Bhopal disaster absolutely horrible, these guys went about parodying the Dow site completely backwards. If they had done it right it could have furthered their cause. Instead it is not only hurting The Yes Men themselves but they have also put others in jeapordy too.
Don't use false registration information. Make sure it is clear that your site is in fact a parody. If it's clear then there should not be any liklihood of confusion. And it's generally not a good idea to use someone's mark in your url! Some courts have allowed "sucks" sites to survive because it is obvious that a mark owner would probably not be sponsoring a site which says that they "suck".
It should also be noted that a parody defense and a First Amend. defense are two completely different things. dhartung is correct in that a parody defense just falls into the liklihood of confusion analysis. A 1st Amend. defense on the other hand has another set of rules. If anyone comes up against a claim like this it pays to find a lawyer who knows the difference. It often comes down to how the defense attorney pleads the case.

And McBain, don't listen to a thing quonsar says.
posted by anathema at 7:59 AM on December 30, 2002

Upon re-reading the article, there is no mention of any dilution claim.
posted by anathema at 8:04 AM on December 30, 2002

The DMCA requires them to remove material which is alleged to be infringing, as soon as is practical.

Yes, but does it require the backbone provider to cut off an entire ISP? That seems to be what happened here. So MUCH more material than that which is alleged to be infringing Dow's copyright is effectively getting removed. And that seems like a First Amendment issue to me, since other Thing.net clients' pages are going to be affected.

(Dow has no quarrel with P.S. 1 or Tenant.org, I assume...)
posted by Vidiot at 8:27 AM on December 30, 2002

Verio was (and maybe still is) also the provider for John Young's cryptome, and caused a small ruckus a year or two ago when they refused to give in to an MPAA demand to remove the site's DeCSS documents mirror.
posted by tingley at 8:58 AM on December 30, 2002

The DMCA requires them to remove material which is alleged to be infringing, as soon as is practical.

They're required to remove it if it's only alleged to be infringing? That's ridiculous, and it sounds [warning: IANAL] unconstitutional (First Amendment &c.).
posted by oaf at 1:35 PM on December 30, 2002

Dow sues penniless Bhopal survivors

It looks like Dow is following Bush's example of preempting parodies by behaving so outrageously that no one can tell what is real and what is satire.
posted by homunculus at 2:27 PM on December 30, 2002

The real responses to the fake press release are interesting - from "Gentlemen, I find the response by the Dow Chemical Corporation not in the least satisfactory" to "Is this supposed to make me feel BETTER??? Or is this some mentally-deranged person's idea of a joke??? You people are HORRIBLE!!!"

Note: The opinions expressed in these messages are those of the members of the public who wrote them. Dow does not necessarily share, and is in no way responsible for, or accountable to, the opinions of the public represented here, or elsewhere, now, in the past, or at any time in the future.
posted by gottabefunky at 3:20 PM on December 30, 2002

Metafilter: Long time poster, first time reader.
posted by gottabefunky at 3:24 PM on December 30, 2002