Apparently Sew Fast/Sew Easy has extended the Yahoo terms of service campaign. It seems that now it is objectionable to
either use the acronym SNB, or to use a “stitch and bitch” phrase in the description text, not the title, of a Yahoo group. It’s not absolutely clear. Yahoo groups who happened to have old content in their messages or files that contained some variant of “stitch and bitch” were targeted. So were groups who had complied with earlier demands to remove “stitch” and “bitch” from their group titles, but for whom Yahoo had failed to update subject line tags or the description text in Yahoo Groups search results. Thus, for example, a group’s message subject line still read [stitchandbitchYourTown] when in fact the group had already voluntarily changed its name to [SNBYourTown] — so the group got another demand to change their name from Yahoo. This is reminiscent of a claim made in 2002 by Alice Starmore’s agent, Alexander Muir, that using Herself’s initials was sufficient to “denote” the ALICE STARMORE trademark, which was apparently a bad thing. (No, it didn’t make sense to me at the time, either; Starmore was not using AS as a trademark, so far as anyone knew.)
Since that last bit about “AS” isn’t applicable anymore, I’ll just meander off the main subject a little and point out that silencing critics by flexing one’s intellectual property rights is by no means an Internet innovation. Even if the goal of litigation is ostensibly to protect one’s state-granted rights, there are certain cases where eliminating (or attempting to eliminate) a source of criticism must have been an extra bonus.
For example, in the 1970s the Church of Scientology sued Cyril Vosper for publishing a book critical of Scientology. Vosper had been a Scientologist, and became disillusioned with its teachings. In the meantime, he had access to a number of the Church’s writings, and in writing his book, he included a number of extracts of the Church’s works, bulletins, and letters, which were protected by copyright, just like anybody else’s literary works. Some of these extracts were very substantial excerpts, so when the church sued Vosper for copyright infringement and breach of confidence in an attempt to get an interlocutory injunction (an injunction before trial preventing further dissemination of the book), the English Court of Appeal had to deal with the question of whether too much had been taken by Vosper for his book to qualify as a fair dealing:
Counsel for the plaintiffs says that what Mr Vosper has done is to take important parts of Mr Hubbard’s book and explain them and amplify them. That, he says, is not fair dealing. Counsel for the defendants says that Mr Vosper has, indeed, taken important parts of Mr Hubbard’s book, but he has done it so as to expose them to the public, and to criticise them and to condemn them. That, he says, is fair dealing.
It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions.
To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the present case, there is material on which the tribunal of fact could find this to be fair dealing. (Hubbard et al. v. Vosper)*
Everyone studying copyright (well, in countries drawing heavily on Commonwealth jurisprudence) reads this case in law school, this passage is frequently quoted in Commonwealth cases dealing with copyright and fair dealing for the purpose of criticism — particularly by the defendant in copyright infringement suits, because the Court of Appeal determined that there was fair dealing, and that the equities did not weigh in favour of an interlocutory injunction. (If you want the court to do your “dirty work” — stop an infringer by issuing an injunction — you need to have relatively “clean hands” yourself. Injunctions are usually a form of equitable relief, meaning that it’s within the court’s discretion to grant or refuse them, based on the facts of each case, the conduct of the parties, and the court’s impression of what would be fair in the circumstances.)
Of course, the SFSE affair isn’t about copyright, it’s about trademarks. As another example, in Canada, Michelin sued the Canadian Auto Workers union for copyright and trademark infringement. Around 1994, CAW had used Bibendum (you know… the Michelin Man!) in pamplets and posters intended to convince Michelin employees in Nova Scotia to join the union. One depiction of Bibendum showed the jolly huge fellow about to squash a worker with his foot.
The result of this lawsuit was a lengthy, reasoned decision thoroughly setting out the meaning of “use” of a trademark in Canadian law (“use” is a many-faceted term). In the end, it was determined that CAW had neither infringed Michelin’s Bibendum trademark, nor depreciated Michelin’s goodwill in the mark (depreciating the value of the goodwill in a trademark is actionable, even if the impunged use is not a confusing use). The attempt to recruit union members, even using a parody of Michelin’s trademark, was not the sort of commerical activity resulting in a “use” that would attract liability.
CAW was held liable for copyright infringement in their portrayal of Bibendum, though. (Not surprisingly, the application of the Charter right of freedom of expression was also argued, and seriously considered and analyzed by the court. It was determined that CAW’s freedom of expression was not infringed by the enforcement of Michelin’s copyright.)
These were lawsuits dealing with print. The Internet, and subsequent litigation, has brought us the US Digital Millennium Copyright Act and Internet service providers’ terms of service. When I say “us”, it really does mean all of us who use US-based service providers, even if we aren’t in that country ourselves — laws governing Internet operators have far-reaching results.
The DMCA operates to give ISPs an “out” in the case of copyright infringement, if the ISP complies with the notice and takedown regime set out in the statute. IIRC, upon receipt of a proper notice of allegation of infringement, the ISP must notify the alleged infringer and take down the material within certain time limits in order to avoid pecuniary liability. The alleged infringer, under the DMCA, has a certain time limit to respond to the allegation with a counter-notification, and if done correctly, the ISP must restore the content and the complainant must then take court action to get it removed again.
Many ISPs, like Yahoo and eBay, have built the takedown procedure into their policies. However, the DMCA applies to copyright only, not trademarks. So to cover themselves, ISPs treat other intellectual property rights the same way they treat copyright — except for the counter-notification. So, if the allegation is trademark infringement, it’s harder to get your content restored, even if the allegation is unfounded.
The easiest solution for individuals is to vote with your wallet, so to speak. If you don’t like an ISP’s policies, move to an ISP with policies you do like. Which reminds me of Canada: if the last proposed amendment to the Canadian Copyright Act hadn’t died on the order paper when the government fell, we might have our own mini-DMCA system in place by now. Except it would have been a notice-and-notice regime: the ISP would have to notify the alleged infringer of the allegation, and retain information about the alleged infringer’s identity for a set period of time. The bill with this amendment will probably get reintroduced at some point; I don’t know if there are plans to beef up the notice-and-notice system. As it is, it’s so… Canadian. “Hello, sorry to bother you, but someone told us you’re infringing their copyright, so we’re just passing along the message. You might want to think about doing something about this. Thanks!”
Anyway. Moving to a new ISP is easier said than done, especially when you’re talking about switching from a service that provides nearly idiot-proof mailing list facilities. But imagine: Yahoo thought that knitters formed an important enough demographic group to specifically reference them on their Groups homepage. What if it were possible to move every major (>100) knitting group from Yahoo, and over to somewhere else? Would Yahoo notice, or bother to react?
*As an aside, I hesitated to put up that quotation from the decision, because certainly someone who wants to infringe copyright might engage in study at the Google School of Law and find this, and claim that it justifies, oh, I don’t know, scanning a pattern from a book and sticking it up on their blog with a few comments, and claiming that’s a fair dealing. But this is a classic passage that captures the balance the court must strike between copyright and fair criticism, by a famous English jurist. So, in case you’re self-medicating: judges aren’t stupid. They can tell the difference between real criticism and a lame excuse to distribute copies.