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...Trying to intimidate a non-profit website: Priceless!

By Hubris Boy in News
Wed Jul 04, 2001 at 01:48:57 AM EST
Tags: Freedom (all tags)

Mastercard (yeah... the "Priceless" credit card company) is threatening to sue attrition.org for copyright infingement.

"What is Mastercard's beef with a non-profit security site?", you may well ask. Apparently, they're upset that Attrition has chosen to include a dozen or so "Priceless" parodies in their image archive. Brian Martin <aka "jericho@attrition.org"> has done a nice job of posting a serialized version of the e-mails here for your perusal.

Now, there are a number of things that might be going on here. Let's consider the top contenders:

  1. Mastercard is genuinely concerned that, through some unimaginably bizarre set of circumstances, their customers may mistake one of the (admittedly tasteless) ads on Attrition's server for the real thing.

  2. Mastercard is concerned that their valuable "Priceless" trademark is being diluted, and may fall into the public domain if they fail to aggressively defend it. This is not as silly as it sounds... the same thing happened to kleenex, xerox, and aspirin. In this case, the outcome of the legal action is not as important as the fact that legal action was taken. What Mastercard is trying to do is establish that they HAVE attempted to defend their trademark.

  3. Mastercard gave their lawyers a pile of cash and set them on "auto-defend" mode; they aren't really following what the lawyers are spending the money on.

  4. "This is just another example of a bloated, evil multinational company trying to use their ill-gotten profits to trample on the little guy! Smash the corporations, dude! Power to the People!"

  5. Something else altogether.

Perhaps the most amusing parts of the whole exchange are Jericho trying to make the lawyer, who sent him an email with a .doc attachment, understand that he only runs Unix on his computers.

"Any correspondence with us needs to be in plain text or it will be ignored."

"I don't have 'Word'. I can't read this."

<rant>Perhaps the least amusing part is the fact that a handful of private citizens, running a non-profit website, will have to spend their own time and money defending this. Evidently, the concepts of "parody" and "satire", and their protected status under American law, are unknown to Mastercard. Sigh. So it looks like the folks at Attrition get to take their turn standing on the wall, defending Freedom of Speech for you and me. Thanks guys!</rant>


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Related Links
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...Trying to intimidate a non-profit website: Priceless! | 24 comments (24 topical, editorial, 0 hidden)
they're obvious parodies.. (3.66 / 9) (#1)
by rebelcool on Tue Jul 03, 2001 at 09:55:01 PM EST

any court would strike this down in a heartbeat. sounds like another case of bored lawyers syndrome. Heh, im sure a well written letter from an attrition webmaster would be enough to get them off their backs.

COG. Build your own community. Free, easy, powerful. Demo site

Scare-off tactic (4.25 / 8) (#2)
by Taral on Tue Jul 03, 2001 at 10:30:03 PM EST

It's not "bored lawyer syndrome". The fact is that this kind of technique (threatening to sue (or actually suing) despite the lack of merits) does work! I really wish there was a way to set up some "Little Guy's Legal Fund" type of thing (I know, it won't work) for those people who want to be able to put up this kind of thing without having to cave into threats because they can't afford the lawyers. (A friend of mine won't run a freenet node for the same reason -- can't afford the lawyers if someone decides to go after her.)

[ Parent ]
Awarding costs (5.00 / 3) (#15)
by driptray on Thu Jul 05, 2001 at 04:11:52 AM EST

The fact is that this kind of technique (threatening to sue (or actually suing) despite the lack of merits) does work!

I know little about the American legal system, but it appears that costs are not awarded as they are in Australia.

Here's how cost awards work: the losing side has to pay the winning side's legal costs. This is very effective at stopping law suits that have a weak legal basis.

The system is not perfect, and some legal costs don't get recovered, but Australia has nothing like the "fear of law suit" problem that the US has.

We brought the disasters. The alcohol. We committed the murders. - Paul Keating
[ Parent ]
Not when the loser is this big (none / 0) (#21)
by error 404 on Tue Jul 10, 2001 at 05:42:30 PM EST

OK, MC has to pay Attrition's lawyers if they lose. They can do that out of petty cash.

Even if there is a %99 chance that MC will lose, Attrition will probably surrender rather than face a %1 of losing everything. And there isn't a %99 chance that MC will lose, because MC has the more expensive lawyer.

The more common effect of the loser pays system is that when the plaintiff has less money than the defendant the plaintiff will surrender right or wrong, rather than pay the big guy's very expensive lawyer.

Electrical banana is bound to be the very next phase
- Donovan

[ Parent ]

Attrition can match them (none / 0) (#22)
by driptray on Wed Jul 11, 2001 at 02:21:10 AM EST

OK, MC has to pay Attrition's lawyers if they lose. They can do that out of petty cash.

If Attrition's case really is strong, they can get loans, or get their lawyers to work for nothing up front, and thus they can begin to match the level of funding of their richer adversaries. However much MC is willing to throw at them in legal costs, Attrition can throw it right back and make it a fair fight. If MC are willing to spend $10 million on lawyers, then Attrition can match them with $10 million worth of lawyers too.

It's a high stakes gamble, but if your case is strong enough...

In the Australian context a company like MC knows this, and so they don't file bogus suits. Nobody but crazy people with money to burn file bogus suits because there is nothing to gain. You lose the case, you lose a lot of money, and you lose your reputation.

The more common effect of the loser pays system is that when the plaintiff has less money than the defendant the plaintiff will surrender right or wrong, rather than pay the big guy's very expensive lawyer.

I agree that the disadvantage of costs awards is that plaintiffs are less likely to take action against big rich adversaries. But if you do have the guts (and a strong enough case) to take action, the promise of a costs award allows the fight to be fairer, and will generally result in more and fairer verdicts.

We brought the disasters. The alcohol. We committed the murders. - Paul Keating
[ Parent ]
More considerations.... (none / 0) (#23)
by Elkor on Wed Jul 11, 2001 at 08:37:14 AM EST

Another disadvantage we face in the American legal system is the appeals process.

While attrition might be able to scrounge up the money to pay for the lawyers, it takes TIME to fight the case.

With the way appeals are set up here in the USA, MC's lawyers can appeal and appeal and get restraining orders and all sorts of stuff.

The other thing is that MC's lawyers are on retainer. They are getting paid whether they prosecute or not, so they prosecute to make it look like they are doing something.

As for the lower paying the winners legal fees, I think that would be great if you put this stipulation in it: The amount you pay cannot exceed the cost of your own defense.

Thus, if you spent $1M on your lawyer, the most you owe to the opponent would be $1M. If you are little guy v big company, it makes a big difference, either way the case goes, and doesn't really affect the big company either way.

"I won't tell you how to love God if you don't tell me how to love myself."
-Margo Eve
[ Parent ]
This sounds familiar.... (3.57 / 7) (#3)
by SbooX on Tue Jul 03, 2001 at 10:32:08 PM EST

Didnt they already try this with Ralph Nader's campaign ad? Hmmmmmm... if I remember correctly MC got smacked down there. This is an even more clear cut case.


god is silly. MGL 272:36

Fat lot of good it did Nader though (3.40 / 5) (#8)
by MattGWU on Wed Jul 04, 2001 at 12:29:25 AM EST

...I hear he lost the election.

[ Parent ]
Costs: (4.73 / 19) (#4)
by spacejack on Tue Jul 03, 2001 at 10:32:40 PM EST

New corporate slogan:

Generating public awareness:

Watching the public parody it to death:

+1. (3.40 / 5) (#7)
by id10t on Tue Jul 03, 2001 at 11:52:26 PM EST

If only to preserve the above comment, which caused me to roll on the floor.

Thank you, I really needed a laugh today.


"Still! `Old friend!' You've managed to kill just about everyone else, but like a poor marksman you keep missing the target!"

Admiral James Tiberius Kirk, ST: The Wrath of Khan


[ Parent ]

Thank you (3.00 / 4) (#10)
by Taral on Wed Jul 04, 2001 at 03:42:47 AM EST

That was priceless -- no pun intended. :) I fully intend to keep that one in mind. Just beautiful.

[ Parent ]
Very like (4.00 / 9) (#5)
by wiredog on Tue Jul 03, 2001 at 10:41:15 PM EST

This story from last April, isn't it?

"Anything that's invented after you're 35 is against the natural order of things", Douglas Adams
If it isn't served, it itsn't legal. (4.75 / 12) (#6)
by localroger on Tue Jul 03, 2001 at 10:45:35 PM EST

Perhaps the most amusing parts of the whole exchange are Jericho trying to make the lawyer, who sent him an email with a .doc attachment, understand that he only runs Unix on his computers.

Legally, he hasn't received any communication from this lawyer. He can simply drop the whole thing and ignore it and when the *real* process server (after another round of legalities behind his back) appears, claim with perfect legal innocence that he was not informed that there was a problem. Because he wasn't. And not because the attachment was in a format his computer doesn't understand. It has to be in a format his eyes understand, presented to him by a formal process -- literally. The law is *cough* blind in many unfortunate respects, but it does not require that you own a computer or be internet-connected to preserve your rights.

I can haz blog!

rec.humor.funny moderator was in the same boat. (4.50 / 14) (#9)
by MattGWU on Wed Jul 04, 2001 at 12:39:38 AM EST

Diluted image, public domain, etc etc, here was his reply (: Web site hosting for anybody... $10/month and up

Threatening letters to people who satirize you, hoping they won't know the law... $500

Reputation as giant corporation required to intimidate small publishers... $billions

Supreme court decisions protecting parody and satire from accusations of copyright and trademark infringement... Priceless

There are some rights money can't buy. For everything else, there's Mastercard's lawyers

Gotta love that. The story was on slashdot awhile back.

Happy, Dopey, Petulent, Anemic, Incredulous, Baked, and "Steve"

Warning (4.44 / 9) (#11)
by codemonkey_uk on Wed Jul 04, 2001 at 09:39:55 AM EST

Some of those pictures are the kind of pictures that would get in in trouble if they where found on your hard drive at work.

Just so you know in advance.
"The most savage controversies are those about matters as to which there is no good evidence either way." - Bertrand Russell

Too Late... (3.60 / 5) (#12)
by ipinkus on Wed Jul 04, 2001 at 11:11:42 AM EST

I've never cleared out my web cache so quickly before...

aside: Am I correct in assuming people do their most k5 writing at work?

[ Parent ]
about 70/30 (3.00 / 5) (#13)
by cetan on Wed Jul 04, 2001 at 01:54:41 PM EST

to reply to your aside:

I do most (70%) of my K5'ing at work, as of late. It seems to come and go with the work-flow, however. I think most people have better internet access at work than at home, which would prompt more activity to sites such as this from there.

===== cetan www.cetan.com =====
[ Parent ]
Justice for sale. (3.85 / 7) (#14)
by Kasreyn on Wed Jul 04, 2001 at 03:23:04 PM EST

It's sad, but pretty much the way the world works. Until we have a legal system wherein the loser pays reasonable winner's legal fees (or something of that sort), and also of course in which judges are unbribeable, then justice will continue to belong only to the rich.

Law suits are expensive things. Lawyers don't work cheap. And those wealthy enough to afford legal attacks can basically pick on those who can't with impunity. This legal bias in favor of the rich will have the added side effect that open source, or free software, or not-for-profit folks, will always have a much rougher time of it than corporate software firms.

(shrug) Before you get all mad at corporations (like Mastercard, which being a credit card company is certified soulless), you would do well to consider the system which allows them to run the show in court.


"Extenuating circumstance to be mentioned on Judgement Day:
We never asked to be born in the first place."

R.I.P. Kurt. You will be missed.
Value of Parody (4.00 / 5) (#16)
by 0xA on Thu Jul 05, 2001 at 09:14:06 AM EST

You know every time a case like this comes up I am amazed at how these companies ignore the extra exposure they get form parodies.

Think about it, every time you see one of these parodies the word "Mastercard" smacks right into your frontal lobe. If you've been exposed to the original ads, you can't help but think about Mastercard. Is this not what the whole point of these add campains is? I would have thought that they would be absoloutely delighted this parody stuff has become as popular as it is, I get these things in my email all the time.

Legal Dancing.... (4.66 / 3) (#17)
by Elkor on Thu Jul 05, 2001 at 10:30:02 AM EST

<disclaimer> I am not a lawyer. I don't even own a law book. The following is based solely on looking at their objections and thinking of ways to satisfy their objections, and maybe make fun of them while at it.

The way I see it, there are a few ways to, if not resolve this issue, make fun with it and drag it out.

1) Insist that all correspondance be conducted via US Mail, as opposed to e-mail. Use the reason of "To prevent further communication errors associated with documentation on different platforms" This gives some time buffer to consult with others before "having" to reply to a message. I would recomend plain text printings using vi or emacs (letterhead would be wasteful)

2) Rename the files from priceless??.jpg to MCparody??.jpg. This a) addresses the "PRICELESS" abuse comment and b) clearly establishes that these files are parodies.

3) Replace the images with images of fine works of art that have been declared to be "priceless" by art collectors/appraisers. The Mona Lisa would be one such example.

Additionally, they can state the "files in question" have been removed. That they have been replaced with other files that are exactly like them could be considered irrelevant. Though this might allow MC to claim a "victory" in their lawsuit.

4) Along with #1, send the mail "return receipt requested." This provides further ammunition for the "not my fault the people in your office don't give you my messages" argument by being able to name the individuals (probably happless secretaries) that signed for the mailings.

5) Set up an index page for the directory clearly explaining that the following images are parodies and not in any way associated with MC.

6) Explain points 2 & 3 to the MC lawyers. Not recommended unless you only want to mess with them, as this evidence could annoy the juge, bepending on who s/he is favoring. (Some judges have no sense of humor)

Repeat: I am not a lawyer. These are just some ways to mess with them and give them a hard time by "appearing" reasonable without actually doing what they want.

"I won't tell you how to love God if you don't tell me how to love myself."
-Margo Eve
Give them their own medicine (4.66 / 3) (#18)
by ubernostrum on Thu Jul 05, 2001 at 06:37:44 PM EST

Any German lawyers out there with an hour or two to kill? Go over Mastercard's website for any word that might be trademarked, then issue a bunch of those "warning" cease-and-desist letters to MC and bill them for your time...call it the "frivolous cease-and-desist tax."

You cooin' with my bird?

mlp (4.00 / 3) (#19)
by mesh on Fri Jul 06, 2001 at 08:45:37 AM EST


... so much for the Linux Fund (none / 0) (#20)
by forrest on Sat Jul 07, 2001 at 09:33:04 PM EST

I thought I might get a Linux Fund credit card one of these days, but now there's no way in hell ...

Sorry, Linux Fund guys.

There's always Visa.... (none / 0) (#24)
by Elkor on Thu Jul 12, 2001 at 05:06:03 PM EST

While they tend to work closely with MC, I believe they are technically a different company?

Or see about getting a corporate blue with Amex.


"I won't tell you how to love God if you don't tell me how to love myself."
-Margo Eve
[ Parent ]
...Trying to intimidate a non-profit website: Priceless! | 24 comments (24 topical, 0 editorial, 0 hidden)
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