Saturday, October 10, 2009

The Skinny on Fair Use

It is ON: Ralph Lauren has filed a Digital Millenium Copyright Act claim against two websites – Boing Boing and Photoshop Disasters, for posting (and mocking) an ad that had been “retouched” to such an egregious degree that the model’s head appeared larger than her waist. Ralph Lauren claimed that posting the ad amounted to copyright infringement, falling outside the scope of Fair Use.

In response, Boing Boing not only refused to remove the ad, but issued a rather epic message summarizing their legal perspective:
"Copyright law doesn't give you the right to threaten your critics for pointing out the problems with your offerings. You should know better. And every time you threaten to sue us over stuff like this, we will:

a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;

b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and

c) Offer nourishing soup and sandwiches to your models."
I ain’t studied IP yet, but seems pretty sound to me.

14 Comments:

Anonymous Anonymous said...

It's ant season. I had my first ant parade of the season a couple days ago. Anyone care to share ant advice for newcomers?

10/11/2009 2:18 PM  
Anonymous Anonymous said...

Toothpaste will keep them from coming in the house. Windex will take care of the ones that have.

10/11/2009 2:21 PM  
Blogger L'Alex said...

Sprinkle comet where you see them coming in.

10/11/2009 3:11 PM  
Blogger Dan said...

Thanks for posting this L'Alex. I have had it linked on my facebook, but def worth an Butts and Noalts post given its legal flavor.

Cory Doctorow is a God.

10/11/2009 5:55 PM  
Blogger Dan said...

Oh, also, I have heard than ants will not cross a line of chalk. True?

10/11/2009 5:55 PM  
Anonymous Anonymous said...

i have a question. the use of the ralph lauren ad seemed absolutely clearly fair use. could the greenberg traurig lawyer who wrote the take-down letter be subject to ethical sanctions for threatening legal action that she must have known to be completely meritless? it's just a bully move.

10/11/2009 6:17 PM  
Anonymous Anonymous said...

5:55 - only because they know that if they do it is F*#king On!

10/11/2009 7:54 PM  
Anonymous Anonymous said...

My ants love pizza. I learned the hard way last fall -- left the box out and an hour later, ants galore!

Oh, and, uh, fair use and stuff.

10/11/2009 9:11 PM  
Blogger Carbolic said...

Ralph Lauren actually conceded defeat last Thursday. See here.

This whole story demonstrates the real importance of ISPs. The Photoshop Disasters Blog couldn't do anything when Ralph Lauren sent the take-down notice; Blogspot automatically takes down posts in a DCMA. (Patrick, take note!). The Canadian company that hosts Boing Boing is in the increasingly rare breed that will actually assess the merits of a take-down letter before taking action.

One of the sad things we learn in law school--or more accurately, we learn just after leaving law school--is that, often, the law isn't a shield; it's a shiv. That is, taking legal action is a remarkably effective way of accomplishing something that isn't legally proper, in a law school sense. It's noteworthy here that Ralph Lauren's concession didn't arise out of the legal process, but out of losing a public relations skirmish.

10/11/2009 9:30 PM  
Blogger Dan said...

6:17, I haven't taken the MPRE yet, but my sense is that even if some type of sanction were possible here, it's not likely. You see this kind of bluff all the time in cease and desist letters, liability waivers, and even warning/disclaimer signs in public places. Just because a sign says the property owner is "not liable for safety of guests" or whatever does not mean that person will be immune from suit after someone gets stabbed in their parking lot. And I guarantee lawyers draft a good deal of those notices.

So, ethical or not, the practice is incredibly widespread.

10/11/2009 11:04 PM  
Blogger Dan said...

Carbolic, your comment was sensible and pretty. But I don't think the blog post you linked to counts as "conceding defeat." Not fully, anyway. Boing Boing was taking RL to task for the image itself, and on that point RL admits it was in the wrong. But BB also maligned RL's egregious abuse of copyright law, and on that point they remain silent.

10/11/2009 11:08 PM  
Blogger Jackie O said...

Poor Filippa. I have a big head, too (physically, not figuratively) and it's rough carrying that bad boy around. But thankfully my dome isn't bigger than my pelvis so I'm doing ok.

Ugly denim line to boot. Hooray for fair use!

10/12/2009 6:36 PM  
Anonymous Anonymous said...

The GT lawyer who drafted the DMCA notice is an idiot. DMCA 512(f) makes the copyright owner liable for abusing the takedown system, which means that lawyer exposed Ralph Lauren to damages and fees by sending a frivolous notice.

10/14/2009 12:09 PM  
Blogger Kathleen said...

I discovered by accident that ants will not cross a line of pledge. This only works if you have hardwood floors, but the stuff is amazing.

10/14/2009 12:10 PM  

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