Web Wars: Companies Get Tough on Rogues
Gil Trevizo received the e-mail from 20th Century Fox’s attorney the night before the big September premiere of the heavily promoted sci-fi series “Millennium.”
If he was a “true fan,” the 25-year-old college student was informed, he would remove his World Wide Web site paying homage to the show. Immediately.
He did--after persuading the University of Texas to let him log back onto his Internet account, which school officials had quickly switched off after Fox alerted them to his apparent piracy of its copyrighted material.
The ensuing flamewar between Fox and its Internet fans reflects corporate America’s growing discomfort with the proliferation of “unauthorized” Web sites about their products. And it underscores the difficulties in mapping existing intellectual property laws onto cyberspace.
Anyone with an opinion and a modem has long been able to declaim online. But the explosion of the Web has spurred the creation of personal “home pages” that incorporate graphics, audio and video and can be viewed by the Web’s millions of users.
While seeking to exploit the new medium for their own ends--Fox, for instance, has its own “Millennium” site--many firms are finding themselves the targets of online criticism--or, in some cases, unwanted praise.
Either way, it is unfamiliar territory for companies accustomed to enjoying control over what gets disseminated about them. By and large, they don’t like it.
Brandishing trademark rights and asserting copyright claims, Fortune 500 companies including Time Warner, Kmart, Gateway 2000 and Intel Corp. are sending in the lawyers. Their quarry--usually individuals with scarce resources--typically agree to shut down their sites or remove offending material.
Web dabblers who publish “fan” sites about musicians and TV shows, or those who use cyberspace to lambaste corporate practices they dislike, are increasingly outraged by the companies’ legal hardball. They say they’re exercising their free-speech rights.
“If you look at the official sites, they tell you exactly what they want you to know,” says Lori Bloomer, a “Millennium” fan leading the e-mail campaign against Fox. “The networks treat the Web as an extension of television and it’s not. It’s more like a party line.”
But the “Millennium” dispute and other similar cases also signal the ephemeral nature of intellectual property in a digital world, where words, images and sounds can be copied, modified and spread across the globe with a few clicks of the mouse.
Rights at Stake
In such an environment, corporations fear, the value of logos and icons could disappear into the ether. If owners of creative work do not assert their right to be compensated for copying, they argue, they will inevitably lose those rights.
“It was Fox’s plan that our official Web site did not go up until the premiere night,” said Fox attorney David Oakes, who recently persuaded the creators of another “unofficial” site about “Millennium” to tear it down.
“These two sites decided they would undercut Fox’s Web site by doing their own. They took our images, they took our logo. They are doing things that are against the wishes of the creators of the show.”
Copyright law has always sought to strike a balance between the public’s right to free speech and the creator’s right to control the distribution of his work, legal experts say. What is unclear is how that balance will translate in the hyper-copying culture of the Internet, where anyone can be a publisher and “information wants to be free” is a longtime motto.
“Some people have referred to the Internet as the home shoplifting network,” says Christopher Wolf, a copyright lawyer at Proskauer, Rose, Goetz & Mendelsohn in Washington.
“People have a sense of entitlement. They’ll say ‘Gee, Microsoft had a good year,’ and copy some software. You don’t see people helping themselves to a Cadillac because GM had a good year. Soon they’ll be able to do that with songs and movies. There have to be both legal and technical solutions.”
But others argue that the laws and economics of copyright will have to be radically reinterpreted to square with the Net’s free-wheeling nature.
They note that since most individuals are not making money from the copied words and images on their site, their transgressions could easily be overlooked--just as taping compact discs for friends or copying a newspaper article for colleagues is routinely ignored.
Purpose of Copyright
“The whole purpose of the Web is to allow people to communicate with each other,” says Pamela Samuelson, a UC Berkeley law professor who specializes in online copyright issues. “That’s also the purpose of copyright.”
With a different understanding of copyright, Fox might distribute portions of its media properties as widely as possible, for free, as some computer software is distributed now. It would make its money by luring digital consumers back for more, or linking it to other services that they would be inclined to pay for.
Other uncertainties arise from the very technology on which the Web is based. Web surfers’ computers automatically store temporary copies of every page they view. The Clinton administration’s proposed extension of the copyright law to cyberspace would criminalize such copying, as well as imposing strict licensing rules for other acts of digital reproduction.
The controversial measure, known as the National Information Infrastructure Copyright Act, is set to be discussed at the World Intellectual Property Organization in Geneva next month, and a version of it will probably be reintroduced in Congress next year.
But for now, intellectual property in cyberspace is governed by predigital laws. And some experts say recent corporate efforts to shut down critics and parodists may skirt even those.
Last month, for example, Gateway 2000 filed a lawsuit against Jeff Blackmon, a former employee whose Web page included a list of the top 10 reasons not to buy one of the company’s computers. Blackmon, 25, was served with a restraining order at his home in Independence, Mo., charged with trademark infringement and told to appear in court the next morning.
He took the page down. “They said they didn’t want me to devalue their logos,” he says. Gateway declined to comment.
The “Kmart sucks” site, where 19-year-old Jim Yagmin describes in unflattering terms his former job at a Kmart store, still stands for the moment, albeit in altered form.
Last summer, Yagmin received a letter from his Internet provider, which had received a letter from Kmart’s attorneys, directing him to: “(1) Remove the icon ‘K’ and any appearances of ‘K’ with the likeness of that used by Kmart, including the red Kmart and the blue and grey K sucks. (2) Remove the name Kmart from the ‘title’ of any page. (3) At the bottom of ‘The Eternal Fear’ page remove the lines ‘Go steal something from Kmart today, and tell ‘em the Punk God sent ya.’ ”
He replaced the ‘K’ with an ‘X’ in most cases. But, two weeks ago, he says, his Internet administrator told him the modifications were not sufficient, and that the site would have to come down.
Seen as Humorous
A creative writing major at Brandeis University, Yagmin--whose site prompted dozens of e-mails relating similar job experiences--says he copied the original ‘K’ from Kmart’s own site.
“That’s the easiest way to do it. I went to a bunch of different sites and collected stuff,” Yagmin says. “It was never intended as a big political statement. It’s just a humorous page that I wrote for my friends and people who had a job at places like that. It started turning into a bigger issue when Kmart brought in lawyers.”
“We monitor the use of our trademark everywhere, including cyberspace,” says Kmart spokeswoman Mary Lorencz. “We’ve spent a great deal of time and money creating a positive image for it, and it’s obviously important to us.”
Copyright law includes a special exemption for parody, which was strengthened by a 1994 Supreme Court ruling that 2 Live Crew’s parody of Roy Orbison’s song, “Pretty Woman,” was protected speech.
Trademark law, focused largely on preventing consumer confusion over who is providing which products and services, is not so lenient.
Michael Lissack, a Wall Street whistle-blower and a former managing director of Smith Barney, says that is exactly why the brokerage used the law to go after his Web site containing news items on municipal bond scandals. Visitors are greeted with the image of a thief picking a man’s pocket. The caption: “Smith Barney making money the ‘old-fashioned way,’ ” is a spoof of the firm’s advertising slogan.
Threatened with a trademark infringement suit, Lissack renamed his site “the Not Smith Barney Page” and stopped using his former employer’s logo.
“It was nothing more than harassment with respect to the rest of my whistle-blowing,” says Lissack, who pays about $25 a month to maintain his site. “I’ve been on radio and TV and in newspapers, but what’s great about the Web is, it’s always there whenever people want to get it.”
“To adopt our trademark over what he calls the municipal bond scandals is on the face of it a misuse of our property,” says a Smith Barney representative.
Satirical use of trademarks is protected speech, but Intel insists that gadfly Robert Collins is still infringing with his site’s slogan: “Intel Absolutely Not Inside,” a play on the corporate “Intel Inside.”
Collins’ site, “Intel Secrets: What Intel Doesn’t Want You To Know,” is devoted to revealing hidden technical details in Intel processors.
‘Rogue Sites’
Perhaps, not surprisingly, at least one public relations firm specializes in the handling of what it dubs “rogue sites” for corporate clients. Known on the Web by the title of the rogue site erected in its honor, “Bastard PR Firm,” New York-based Middleberg and Associates devises “net strategies” for firms under Web attack.
“Up until recently you had no recourse,” says Don Middleberg. “Maybe you put letters in the mail to the Better Business Bureau or maybe you put out leaflets. Now you have the Net, it’s a cheap way to complain. Some people have legitimate complaints. Other people are being nasty and vicious. Look at ‘Kmart Sucks’ . . . there’s no restrictions, there’s no censorship and a lot of companies are getting very nervous.”
Indeed, corporations and other institutions have employed widely varying methods for dealing with alleged copyright and trademark violators.
The Church of Scientology filed lawsuits against critics who posted its literature on the Internet, raided the homes of several of its targets and seized their computer equipment--a practice that’s permitted in certain circumstances under civil copyright statutes.
Dutton Children’s Books, on the other hand, gently informed the maintainer of a “Winnie the Pooh” site that “[W]e too wish that The Bear have a forum where Interested Parties may discuss him--and where they will find more than Little Smackerels of Items of Note. Should you at some later date wish to create such a page, and include a limited amount of Pooh text and/or art . . . then you will need to apply to Dutton Children’s Books at that point for prior written permission.”
Ironically, the fan sites that exist almost solely to laud and promote a particular product have fewer defenses under current law than those slinging arrows.
Injured cyber-fans, who use the sites to trade rumors about upcoming episodes, write “fan fiction” and link to other sites of interest, blame the corporations behind their beloved entertainment properties for failing to understand the nature of the new medium.
“They told me if sites aren’t officially sanctioned they could provide erroneous information,” says Trevizo. “I was trying to explain to them that they’re alienating a huge amount of fans, but they didn’t seem to care.”
Economic Incentive
Fox spent more than $100,000 on its “Millennium” site, and like many companies eventually may sell promotional materials through it. So the company has a basic economic motive for wanting Internet fans to have fewer places to find series information. Fox attorney Oakes says Trevizo used images from its site on his own, as well as information from a bootlegged video of the first episode.
But the network insists the real issue is exercising creative control. “The X-Files,” another Fox show, spawned dozens of fan sites. But it also led to the distribution of digitally altered nude photos of one star, Gillian Anderson. Fans say such problems are regrettable, but that the networks should find some way around them.
Since Trevizo tore down his site, Web surfers organized from an electronic mailing list of “X-Files” fans have bombarded the network with e-mail. There is even talk of an advertiser boycott.
“They’re sending everything from protests to hate mail,” says Fox attorney Oakes. “This has forced us and other studios to focus more on the misuse of our property on fan Web sites.”
Warner Bros.’ “cease and desist” letters to Internet fans led to the formation of the Warner Internet Fans Assn. The Web’s “Trademark Wars” even have their own home page. A typical sample: “Trademark owner: Viacom/Paramount (Brady Bunch) Targeted site(s): The Unofficial Brady Bunch Home Page. Standard fan page story: Fan starts page. Gets mean letter. Takes stuff down.”
According to Misha Glouberman, a Toronto Webmaster who keeps the list up to date, others to receive “cease and desist” letters regarding copyright or trademark infringement include a “Melrose Place” fan maintaining a site in Germany, a Mountain View resident keeping a list of links to Lego sites on the Web and “Star Trek” fans who leaked information about upcoming shows.
Several of them no longer exist. But more spring up every day. And the aggressive legal tactics may backfire.
“The real issue here seems to be that they feel uncomfortable not having control over what they don’t own, and seeing it linked to what they do own,” says Esther Dyson, chairwoman of the Electronic Frontier Foundation. “But they’re just going to have to get used to it. The difference is that in the past other people’s comments about them were not as visible or persistent.”
The “First Unofficial ‘Millennium’ WWW Site” went up before the second episode. Several dozen other fans activated “protest sites” before the third show aired last Friday. Using slogans from “X-Files” and “Millennium,” they are picking up the tools of parody. “They’re shutting us down, Scully,” the sites proclaim, playing on a line instantly recognizable to fans of the series. “Free speech is out there.”
