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[P]
David vs. Goliath, once again

By interiot in MLP
Thu Feb 01, 2001 at 07:18:18 PM EST
Tags: Freedom (all tags)
Freedom

It's a story that's been played out many times before, but it's still fun to watch.

Boy makes funny site (CNNdn.com). Big company gets miffed and sues. Boy displays moral and intellectual superiority. Company displays frothing lawyers.


Here are a few choice quotes from their exchange:

CNN Lawyers:

With regard to CNN's trademark concerns, it appears that you have registered and are using the CNNDN.COM domain name because it is a popular misspelling of the CNNFN.COM domain name (in this regard, we note that the letter "D" is adjacent to the letter "F" on a keyboard). It therefore appears that you are trying to attract Internet users to your site who are actually trying to reach the CNNFN.COM site.


Zach Exley:

I picked the URL "CNNdn" to signify "down," as in: the stock market going down, down, down. See the arrow pointing down on the CNNdn logo? I did not, as you suggested, pick the name because "D" is next to "F" on the keyboard. I have server records that prove that the URL http://cnndn.com received less than ten visits per day before I posted a site to the URL and told others about it.

Now that you've begun to take action against my extremely insignificant Web site, I'm looking at this as an experiment. My theory is that:

    1. even though CNN will only be harmed by taking action against me (even and especially if it succeeds in shutting down CNNdn.com), and
    2. even though I will only benefit by CNN taking action against me, and
    3. even though CNN is not being harmed at all by my site now
you will continue to advise CNN to take action against me. This same situation has played out countless times between corporations and individuals over trademark issues, and each time (almost compulsively) the corporation behaves exactly the same way. Each time the corporation smears its own reputation and the individual gets lots of good press and has fun.

The experiment is this: I'm going to do my best to help your client understand the true nature of this situation and how this case would be a complete waste of their time and their money. But I hypothesize that they will not be able to help themselves. They will not be able to not listen to their lawyers. Something has happened in our society where clients can't bring themselves to make decisions for themselves. It's a bad thing and it deserves some attention in the business press.

I'm sure that the decision to take action against me did not come from people within CNN. Maybe they alerted you to the site, but it was your idea to begin to take action against me. Why not just tell them, "Hardly anyone is visiting the site anyway, and if we leave it alone it will soon be forgotten altogether."

OK, that said there is one condition on which I would immediately shut the site down and even turn over the domain name cnndn.com to your client: Ted Turner just has to agree to have a beer with me. I know he's a busy man, but I'll make it real easy. This can happen anytime in the next 5 years, and the meeting only has to last an hour. It can happen anywhere but I'll need a few weeks notice if it's more than a train ride away from wherever I'm living. I think Mr. Turner would actually have an interesting time talking to me, and he'd be saving CNN tens of thousands of dollars in legal fees.

CNNdn has developed a readership among CNN employees. In fact, 20% of the traffic to the site so far has come from Turner Corp. computers. Therefore, you can be assured that this conversation between us will also make it directly to your client.

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Display: Sort:
David vs. Goliath, once again | 39 comments (37 topical, 2 editorial, 0 hidden)
The Chimp Channel (3.20 / 5) (#3)
by eskimo on Thu Feb 01, 2001 at 06:25:00 PM EST

It seems pretty clear to me that the Chimp Channel people are just pissed at getting beaten to the punch.

I am my own home. - Banana Yoshimoto

TimeWarner says "It's a parody" (3.76 / 13) (#4)
by Seumas on Thu Feb 01, 2001 at 06:42:07 PM EST

TimeWarner's own lawyers said the site was a "parody".

As you know from the voice mail message David Stewart left for you this afternoon, this law firm represents Cable News Network LP, LLLP ("CNN"). Our client has recently discovered your use of the domain name CNNDN.COM to host a commercial web site that appears to be intended as a parody of CNN's CNNFN.COM web site.

Well, there you have it. The complainants themselves stated that it is quite clearly a parody. Parody is a protected form of expression. Case closed. Boy wins.
--
I just read K5 for the articles.

No they didn't! (none / 0) (#38)
by hardcase on Tue Feb 06, 2001 at 09:51:28 PM EST

TimeWarner's own lawyers said the site was a "parody".

As you know from the voice mail message David Stewart left for you this afternoon, this law firm represents Cable News Network LP, LLLP ("CNN"). Our client has recently discovered your use of the domain name CNNDN.COM to host a commercial web site that appears to be intended as a parody of CNN's CNNFN.COM web site.

No, the lawyer said that it "appears to be intended as a parody". He didn't say that it was. There's a big difference.

-h-

[ Parent ]

Smartass! (3.95 / 20) (#5)
by Signal 11 on Thu Feb 01, 2001 at 06:43:04 PM EST

I love this kid. He pointedly exposes the lawyers, debunks the claims of infringement by "confusingly similar" names - another oft used defense by his system logs, and the coup de grace is offering to let it all go in exchange for a beer.

I gotta hand it to him... it's a rarity to have this level of style on issues of principal. Best of luck to him, and if you're reading this.. I'd give you an award if I could. =)


--
Society needs therapy. It's having
trouble accepting itself.

Agreed! (3.28 / 7) (#22)
by arcterex on Fri Feb 02, 2001 at 12:26:41 AM EST

Completely and totally agreed. I almost think that he put the site up just to produce this sort of response (not the case of course...). But you're right, his grasp of it all (and cool in dealing with the lawyers... I'd be freaking out personally) is great. Especially his demands. To have a beer with Ted Turner, and it all goes away. I'm almost willing to bet ($10 anyone? :) that they'll take the lawyer option, even though they know about the alternative.

Of course, I'm sure the lawyer has buried that option somewhere... I mean, where else would they get their legal fees!

[ Parent ]

Smartass -- yes. Kid -- apparently not. (4.30 / 10) (#23)
by paulh on Fri Feb 02, 2001 at 01:07:16 AM EST

There are a couple of other comments referring to Exley variously as a "kid" and a "boy". According to The Hartford Courant, he's 31. Maybe everyone around here is just really old...

-- Paul.
[ Parent ]
It's all about perspective (2.75 / 4) (#29)
by Anonymous 242 on Fri Feb 02, 2001 at 10:37:28 AM EST

I personally consider someone 31 years of age to be "just a kid."

And I haven't even hit 30 yet.

Given that I am acquaintences with many active, vibrant individuals in their 50s, 60s and even 70s, 30 years doesn't seem real old.



[ Parent ]
Boy (3.50 / 4) (#31)
by interiot on Fri Feb 02, 2001 at 12:17:20 PM EST

As the one who wrote this story up, I'm probably most responsible for the use of the word "boy".

You're right, I should have checked my facts first. Though I'd contend that my classification of his persona isn't completely incorrect. In the article you linked to, he calls himself a "rabble-rouser"-- though a rabble-rouser with a cause, so my appologies for not giving him enough credit.

[ Parent ]

Alternate DNS (3.33 / 9) (#6)
by Seumas on Thu Feb 01, 2001 at 06:47:22 PM EST

This may be one of those situations where using an alternate nameserver/DNS system as previously mentioned on K5 would come in handing in thumbing your nose at the idiot lawyers raking the defendants and their clients alike.
--
I just read K5 for the articles.
Jurisdiction / legality (4.00 / 5) (#7)
by interiot on Thu Feb 01, 2001 at 06:54:18 PM EST

So where would the court's jurisdiction stop?

Could the court tell AlterNIC to stop listing it? Could they tell me to stop listing it in my lmhosts file?

Is it only illegal if the owner initiates the DNS entry?

[ Parent ]

Well, they can be flooded (2.60 / 5) (#9)
by Seumas on Thu Feb 01, 2001 at 07:11:33 PM EST

Another idea would be for everyone to register a variation of cnnfn. there are 24 other letters aside from f and d which are already used. Then maybe do every variation of [x]nnfn. Then they'll have to hitch their lawyers to another 50+ cases. At the worst, the registrants would probably lose their domains and be out $15 for the domain name registration costs. TimeWarner, on the other hand, would be out hundreds of thousands in lawyer fees associated with the 50+ cases.
--
I just read K5 for the articles.
[ Parent ]
Elegance (2.25 / 4) (#16)
by interiot on Thu Feb 01, 2001 at 08:14:48 PM EST

It's certainly more elegant to quietly ignore any annoying rulings, rather than to make it obvious that they're able to annoy us and that it bothers us so much that we'll put a lot of time into the matter.

[ Parent ]
Fun with lawyers and domain names (3.00 / 3) (#32)
by Kartoffel on Fri Feb 02, 2001 at 04:33:48 PM EST

Back last fall when Digital Convergence's Cue:Cat was all the rage, I made a parody site using the tried-and-true "Mr. T. vs ****" formula.

They never called me.
They never send any nasty letters.

However, they pro-actively registered:
cuecatatemyballs.com,
cuecatatemyballs.org, and
cuecatatemyballs.net!!!

I tried to egg them on but apparently they had other things to worry about. I even CALLED Digital Corporation and asked a guy there named Paul what he thought. He basically said that his company was busting its ass trying to launch its product and they had other things to worry about. He was a nice guy :-)

"Mr. T versus the CueCat" was a fun stunt. There's an article about it at
http://bedope.com/stories/0122.html.

[ Parent ]
CNN will probably win this case (3.93 / 16) (#8)
by skipio on Thu Feb 01, 2001 at 07:01:32 PM EST

Under the law it is illegal to make a parody website of CNN if you are NOT making fun of or criticising CNN itself (or AOL, Time Warner, etc).
It would be illegal, for the same reason, to make a Mickey Mouse cartoon if you were making fun of anything other than the Walt Disney company or Mickey Mouse himself.

Furthermore, the kid's site looks almost exactly like the real CNNfn site. He didn't even explicitely state that his site was a parody, nor did he provide a link to the real CNNfn site.

There are sadly many unwarranted lawsuits going on against parody sites (such as the one against the kid's gwbush.com site), but this is not one of those cases.

Very obvious after first click (3.85 / 7) (#10)
by interiot on Thu Feb 01, 2001 at 07:25:20 PM EST

CNN makes most of its money on returning customers who have found the stories to be helpful.

Zach's site has basically two pages on it, so it's immediately obvious that the site is not the real CNNfn, so customers would immediately figure it out and go to the real site if they really were looking for in-depth stories.

It's not like copied sweatshirts are being sold for $20 a pop, and the customer only finds out it's a fake after it's too late.

[ Parent ]

He is making fun of CNNfn (4.37 / 8) (#11)
by Wah on Thu Feb 01, 2001 at 07:25:25 PM EST

and every other market lovin' website.

I love that banner on the "original" site...Financial news from [from] analysts who aren't high on corporate crack." or "Hot Stocks: None in sight"

This is textbook parody. Kinda like the original letter from the lawyer "We respect the 1st amendment, except when someone uses it to make fun of us."
--
Fail to Obey?
[ Parent ]

No, no, no. (4.12 / 8) (#12)
by seebs on Thu Feb 01, 2001 at 07:41:01 PM EST

It's not "illegal to make a parody of something if you are not making fun of it". The parody defense is weaker unless you are making fun of the thing copied. He is clearly making fun of the thing copied; his site is basically a joke about CNNfn *and other things like it*.

Assume, though, that he loses that defense entirely. What will they sue him for? Is he copying material that is protected by copyright? Probably not, because imitation isn't *COPYING*. Is he infringing on their trademark? Probably not; there is no plausible chance for consumer confusion.

IANAL, but I can't see anything in what he's done that would be illegal to begin with, to get us into the question of whether or not it's parody.


[ Parent ]
maybe? (3.60 / 5) (#18)
by interiot on Thu Feb 01, 2001 at 08:35:00 PM EST

CNN's Complaint alleges only trademark infringement (well, and cybersquatting, servicemark infringement, and deceptive trade practices).

If the judge(s) use criteria such as this, this, and maybe these, but not this or this, then the issue may not be so clear.

Some notes:

  • First amendment considerations are much stronger in the non-commercial context, in which the parodist is attempting to express an idea, than in the commercial context, in which the parodist uses the parody of the mark in association with his own goods or services.
  • Much as in any other area of trademark law, the similarity or lack of similarity of the mark involved and its parody is critical. A parodistic reference to another mark ... is not likely to result in a finding of infringement when the actual marks involved are clearly different.
  • If the parody calls the original to mind, but doesn't adequately distinguish it, the result is trademark infringement.


[ Parent ]
trademark and parody (4.00 / 3) (#34)
by www.sorehands.com on Fri Feb 02, 2001 at 07:12:08 PM EST

It has been ruled that you can't use trademark law to prevent or restrict parody. See Mattel v. MCA, (The Barbie Girl case) or New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 307 (9th Cir. 1992). It's hard to spoof or parody something if you can't refer to it by a trademarked name.


------------------------------------------------------------------------------
http://www.barbieslapp.com
Mattel, SLAPP terrorists intent on destroying free speech.
-----------------------------------------------------------
[ Parent ]

Alternate URL (3.71 / 7) (#13)
by johnzo on Thu Feb 01, 2001 at 08:02:00 PM EST

The site notes that the cnndn.com domain may vanish as a result of the preliminary injunction, and provides an alternate URL:

http://neirp.com/cnndn

zo.

Minor correction (3.66 / 3) (#36)
by interiot on Sat Feb 03, 2001 at 01:55:55 PM EST

Apparently CNN had success in winning a TRO.

Strangely though, CNNdn.com/ is still redirecting to the neirp.com/cnndn/ page, but THAT page was taken down to comply with the Judge's orders.

But his version of the story resumes at neirp.com/.

[ Parent ]

Ease off on CNN...did you actually read everything (4.63 / 30) (#14)
by GreenCrackBaby on Thu Feb 01, 2001 at 08:03:11 PM EST

Disclaimer: I believe CNN is stupid for going after this guy. It can only hurt their image and protects nothing.

Regardless, I think that people are not taking the time to fully read the letter that was sent by the CNN lawyers initially. Before you do anything else, please read it .

If you'll note, the lawyers were very polite and respectful initially. This is not a case of instant attack:
"CNN therefore recognizes and respects the First Amendment rights of others, including the rights of others to appropriately criticize or parody CNN"

"In this case, we note that your web site copies virtually all of the elements of the CNNFN.COM web site. We therefore believe your site exceeds the bounds of permissible copying under the Copyright Act."

"we believe there are ways that CNN's concerns can be addressed that would permit you to continue to operate a site that is critical of CNN, should you choose to do so"

It seems like the lawyers were willing to happily work something out with this guy so that he could keep running his parody site. It was this guy who decided an all-out legal battle would be better.

Does this make it any less stupid what CNN is doing? No. But after I initially read the story I had pictured the typical scenario -- big company lawyers send curt and threatening "cease and desist" letters. Clearly this was not the case.

Perception (3.66 / 9) (#15)
by interiot on Thu Feb 01, 2001 at 08:12:01 PM EST

What better way to bully someone than to first pretend that you'll be nice? I see those statements as being directed more at the judge than at the defendant. "We tried to be nice, but he wouldn't accept our generous offers..." (especially if the plaintifs knew the defendant's history)

Maybe that's a bit of a stretch, I dunno.

[ Parent ]

Maybe (3.12 / 8) (#17)
by GreenCrackBaby on Thu Feb 01, 2001 at 08:15:45 PM EST

But the problem here is that he didn't give the process a chance. If you read his response to that initial letter you get an idea of why the lawyers went after him a little more forcefully from then on.

Had he said, "All right, I'm game...what do I need to do to make CNN happy?" then I wouldn't be so critical.

[ Parent ]

The point is (4.11 / 9) (#20)
by ODiV on Thu Feb 01, 2001 at 11:42:37 PM EST

he shouldn't have to make them happy. You know: rights, parody and all that.


--
[ odiv.net ]
[ Parent ]
Read it again (2.54 / 11) (#19)
by TigerBaer on Thu Feb 01, 2001 at 11:23:24 PM EST

we believe there are ways that CNN's concerns can be addressed that would permit you to continue to operate a site that is critical of CNN, should you choose to do so

The lawyers are really being "professional" here. The second that the author of the site gives an inch (i.e. agrees to slightly alter the logo) the lawyers will demand a mile!

Not only that.. these lawyers are not in it to protect the CNN image! they are in it to extort millions from AOLTW in consulting fees!

Lawyers like these are despicable morally depraved subhumans, and should return to the dank pit them and their trophy wives emerged from.

[ Parent ]
Lawyers and game theory (4.66 / 6) (#27)
by codemonkey_uk on Fri Feb 02, 2001 at 09:56:29 AM EST

Lawyers, and the legal industry, try to give the impression to their clients that everything is a zero sum game. That is, for one "player" to win, the other must loose.

Not only is this not the case, as a lot of the time a dispute can be resolved to everyones mutual benifit, but when reconsidered from a ditached perspective, its not a 2 player zero sum game, but a 3 player game that the lawyers cannot loose.

Western thinking is so entrenched in the consept of "argument" that it cannot move behond the idiom of attack - defend.

This problem, if it is a problem, could well be resolved without lawyers, to everyones mutual benifit.
---
Thad
"The most savage controversies are those about matters as to which there is no good evidence either way." - Bertrand Russell
[ Parent ]

lawyers (3.80 / 5) (#28)
by TigerBaer on Fri Feb 02, 2001 at 10:33:56 AM EST

They are not all bad. But as a growing trend, the oppurtunists join the field, ignoring the original purpose of the lawyer -> to give a detailed analysis of the law to the court.

Unfortunately, many of the new "ambulance chasers" and corporate lawyers are not in the field for upholding the law, but rather to extort loads of cash.

An easy analogy to make is a plastic surgeon, who is not there to save peoples lives, but rather to make tons of cash, and meet pretty people (or soon to be).



[ Parent ]
"Nice" doesn't matter (4.18 / 11) (#21)
by MoxFulder on Fri Feb 02, 2001 at 12:00:40 AM EST

Regardless of how "nice" or "mean" the CNN lawyers appear in their communications with Zack Exley, the only thing that should really matter is whether or not Exley's CNNdn site is allowed by law.

I happen to believe that it is allowed ... it's certainly no worse than parody ads in Mad Magazine ... and Mad doesn't get sued, does it?

Exley also seems to have plenty of statistics clearly showing that virtually no one "accidentally" goes to cnndn.com, and he rightly points out that the site would still be an unknown corner of the 'Net if the CNN lawyers hadn't made a big deal out of it.

"If good things lasted forever, would we realize how special they are?"
--Calvin and Hobbes


[ Parent ]
Siccing lawyers is aggressive (3.66 / 3) (#35)
by winthrop on Fri Feb 02, 2001 at 08:45:23 PM EST

If CNN had wanted to be nice, they wouldn't have threatened him, either by invoking the law or by making first contact with lawyers.

If a guy walked up to you in a restaurant and said, "Look, my family always sits at this table and it's my wife's birthday and we really want to sit there. Let's work something out." I hope you'd hear him out.

But if a guy sends a bodyguard to say, "I don't want to hurt anybody here, but you're sitting at my client's table. Let's work something out." then it doesn't matter how nicely he says it, he's threatening you.

That's pretty much what CNN did.

[ Parent ]

Ironic... (3.50 / 6) (#24)
by tfrayner on Fri Feb 02, 2001 at 01:55:51 AM EST

...that a news organization would seek to circumscribe free speech. Maybe I'm being naive, but I would think that freedom of the press would still be an important issue for them.

Freedom of the press? (2.00 / 1) (#33)
by kwsNI on Fri Feb 02, 2001 at 06:26:33 PM EST

I hate to break it to you but (AISI) free speech and freedom of the press sold out a long time ago to corporations.

kwsNI
I can picture in my mind a world without war, a world without hate. And I can picture us attacking that world, because they'd never expect it. -Jack Handy
[ Parent ]
Exley knows what he's doing (4.38 / 21) (#25)
by streetlawyer on Fri Feb 02, 2001 at 05:04:49 AM EST

This is an extremely inaccurate write-up. I know Zach Exley a bit from mailing lists (he's not a "boy"; and if he was, why would he be talking about drinking beer? He's actually a jobbing computer consultant).

Basically, Zach has a bee in his bonnet about these things and likes to play games with corporate lawyers. The sequence of events is more like:

  1. Man decides to piss of a company
  2. Man puts up site which is borderline infringment of copyright
  3. Man receives lawyer's letter
  4. Man claims fair use parody (which he is only ambiguously entitled to do; it is not obvious that CNNdn is parodying CNN itself rather than the stock market as a whole)
  5. Man gets another lawyer's letter.
Zach collects threatening letters from lawyers. If he didn't get one this time, he'd have stepped it up until he did.

In any case, what kind of letters are lawyers meant to write? They have to do something, to prove that they are defending the trademark for future cases.

--
Just because things have been nonergodic so far, doesn't mean that they'll be nonergodic forever

and furthermore .... (2.00 / 2) (#26)
by streetlawyer on Fri Feb 02, 2001 at 08:14:29 AM EST

now that I come to think of it, "Zach Exley" spells his first name "Zack" everywhere else I've seen it.

--
Just because things have been nonergodic so far, doesn't mean that they'll be nonergodic forever
[ Parent ]
Read up on US trademark laws (5.00 / 1) (#37)
by dagoski on Mon Feb 05, 2001 at 01:48:07 PM EST

Don't be so hasty to paint the big corp as the bad guy. They don't want to waste time and effort on small insignificant parody sites, but the way US trademark law is worded you as the holder of that trademark have to defend it against all comers. That's right: yes, you did file for the trademark spending a lot of money to do so, and, yes, you did get piece of paper saying it was yours, but if you don't defend it, you lose it. There needs to be a lot of reform of US trademark laws, but for now, everyone has to abide by them. And, that means a lot of time and money wasted on non-issues likes this.

That said, there is still a dark side to this trend. Major corporations are also using trademark laws as a tool to silence critics. A parody group can cite fair use with regards to copyrights and trademarks, but courts are increasingly deaf to such arguements. Furthermore, the way the trademark laws are worded, someone should be immune from legal attack if they are in different industries than the trademark holder, but that can be very hard to prove these days.



Congratulations (none / 0) (#39)
by brad3378 on Sun Feb 11, 2001 at 11:48:34 AM EST

I attempted to visit his site, but apparently it has been taken down. Perhaps Mr. Turner took him up on his offer!?!?

Regardless, I admire how he handled this situation. He took a lemon and made lemonade.

I would be willing to bet that most people would let some political agenda get in the way. He tackled this problem in a very polite yet professional manner, and turned his "problem" into a great opportunity.

< bad joke>
The world needs more kids that drink beer.
</bad joke>

David vs. Goliath, once again | 39 comments (37 topical, 2 editorial, 0 hidden)
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