AmEx vs. rec.humor.funny

An anonymous reader writes "I worried that Brad Templeton's humorous reply in rec.humour.funny to the MasterCard threat might put an end to my daily read. I never heard the outcome, but since the column continues and he is using the same response to a suit from American Express, it must have been OK. This guy has more b*lls than I."

Comments

slashdotted

[Karamchand]

link1
link2

Both sites already slow, here they are

[Anonymous Coward]

Mastercard threatens rec.humor.funny over satire
bt@templetons.com (Brad Templeton)
http://www.templetons.com/brad

(topical, chuckle, true)

Two years ago, rec.humor.funny published a sick satire of the Mastercard "Priceless" ads (There are some things money can't buy, for everything else there's Mastercard) based around the Columbine tragedy. I won't repeat it here, since it was pretty sick and offensive, though you can find it on the web site at:

http://www.netfunny.com/rhf/jokes/99/Apr/columbi ne .html

Today we received a "cease and desist" letter from Mastercard's lawyers demanding that the parody be removed from our web site, falsely claiming it violates their trademarks and copyrights, in spite of the well established rules protecting satire and parody from such attacks.

The letter can be found at

http://www.netfunny.com/rhf/price.html

Here, however, is my response...

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.

============

April 13, 2004
American Express threatens me over joke on web site

On my rec.humor.funny web site, I maintain the newsgroup archives, including this 13 year old joke entitled American Expressway.

Today I got one of those bullying "cease and desist" letters from American Express's law firm, ordering me to take down the joke for trademark infringement. Here's the text of the cease and desist

Do these guys know who they are trying to bully? I guess not, here's my response to them:

You can "Screw More" with an American Express Lawyer

Do you know me?

I built a famous company with a famous name, and then satirists made fun of me by taking advantage of the constitutional protections afforded parody when it comes to trademark law?

That's why I retained Leydig, Voit & Mayer, Ltd, the "American Express Lawyers." Should you ever feel your reputation lost or stolen by free speech and satire, just one call gets LVM to write a threatening cease and desist letter -- usually on the same day -- citing all sorts of important sounding laws but ignoring the realities of parody. Most innocent web sites will cave in, not knowing their rights. LVM will pretend it has never read cases like L.L. Bean, Inc. v. High Society and dozens of others. There's no preset limit on the number of people you can threaten, so you can bully as much as you wish.

After all, Being Giant and Intimidating has its Privileges.

American Express Lawyers: Don't leave your home page without them.

For more examples of such games, check out our joint project with the Berkman center to document them: Chilling Effects Clearinghouse. And yes, Mastercard pulled the same stunt several years ago.
Posted by Brad at April 13, 2004 03:17 PM | TrackBack

Re:Both sites already slow, here they are

[slackerboy]

And the text of the actual joke that AmEx is complaining about is google cached here.

Re:Both sites already slow, here they are

[sjames]

Actually, that's just what expensive corporate lawyers would like you to believe.

It is true that a trademark can be lost if it is not vigorously protected from infringement. However, since satire isn't an infringement, there is nothing to protect it from when satire happens.

The various bullying C&D letters sent out are nothing more or less than willful bullying.

If there is any doubt about the nature of a trademark's use, the various lawyers could just as easily send out a letter noting the existance of the parody, and reminding the author or publisher of the parody that while parody is perfectly legal, they should take steps to assure that they do not cross the line by going into (for example) the banking and credit business using that parody. There is no need to threaten gloom and doom or willfully ignore important portions of trademark law other than to bully the recipiant of the letter.

Re:Both sites already slow, here they are

[RazzleFrog]

First - That's a load of bullshit. There is no such thing as protecting your trademark. As long as you continue to use it in the course of business it is protected. It is an urban legend, an old wives tales, general bullshit. There has never been a case where a company failed to protect its trademark and lost.

Second - Trademark infringement can only come when another company uses your trademark in business. Just using the name of a company in a joke is not trademark infringement any more than me typing MasterCard right here is not infringement.

Third - Contrary to the moron AC below Kleenex still holds its trademark. You will never see Scotties Kleenex - they are called Scotties Tissues. People can refer to common items (like band aids, kleenex, vasoline, etc) but when a company sells a similar product they can not use that name. Just go to a grocery store and that is plain to see.

Fourth - This has nothing to do with trademarks. this is about Copyrights. You don't trademark a commercial. It is copyrighted. Parody is allowed under copyright law and this is surely a parody.

Re:Both sites already slow, here they are

[RazzleFrog]

"Aspirin was first sold as a powder. In 1915, the first Aspirin tablets were made. Interestingly, Aspirin ® and Heroin ® were once trademarks belonging to Bayer. After Germany lost World War I, Bayer was forced to give up both trademarks as part of the Treaty of Versailles in 1919."

That has nothing to do with not protecting trademarks. It has to do with losing a war.

Re:Both sites already slow, here they are

[Aneurysm9]

First - a trademark can be lost through a process known as "genericide," which happens, among other ways, when a mark is not protected against uses other than those by the owner identifying a good or service sold in commerce. See The Murphy Door Bed Co., Inc. v. Interior Sleep Systems, Inc., 874 F.2d 95 (2d Cir. 1989) ("In finding a lack of genericness, the district court was influenced by Murphy's efforts at policing it's mark"). It is only when a mark has "entered the public domain beyond recall" that policing is of no consequence. See King Seely Thermos Co. v. Aladdin Indus., Inc., 321b F.2d 577, 579 (2d Cir. 1963). Second - It is using a trademark in commerce in such a way that creates a likelihood of confusion as to the source of goods or services that constitutes trademark infringement. 15 U.S.C. 1114. Because "commerce" has such a broad definition thanks to Congress and the courts wanting to include everything under the sun in the Commerce Clause power, telling a joke could constitute using a mark in commerce if, for example, it was told by a comedian at a performance for which he was receiving money. Third - Kimberly-Clark still holds a valid trademark on Kleenex because they have policed the mark. You will notice that they are never simply "Kleenex," but always "Kleenex brand facial tissue." Just like the old "You can't Xerox a Xerox on a Xerox but we don't mind at all if you copy a copy on a Xerox copier" ad. It's all about ensuring that the mark is associated with a particular source of a type of product and not the type of product in general. Fourth - If MasterCard and AmEx have registered trademarks, they need to assert trademark infringement as much as they would need to assert copyright infringement related to the style and structure of the ads. I think it highly unlikely that any copyright theory would succeed given the history of parody and fair use in the copyright jurisprudence. Given the Mattel v. MCA decision about that well known "German street walker" (er, Barbie) I doubt that a trademark claim would succeed either. That doesn't mean that neither of them should at least be brought to the attention of the potential infringer. Remember, fair use is an affirmative defense. When you plead fair use you are, in essense, saying, "yeah, I did infringe, but you can't hold me liable because what I did is protected." If your argument doesn't fly with the judge, you're going to be liable.

Re:Both sites already slow, here they are

[cayenne8]

"Other than people citing Kleenex as an example of a lost trademark, I've never heard anyone refer to a tissue as a Kleenex."

Well, depends somewhat on where you live. In the south in the US, it takes place quite often. Kleenex is generic for any type tissue you could blow your nose on...even toilet paper might apply if that's all you had. Down here..Coke is synonymous with any carbonated beverage. If someone asks you "Hey, you want a coke"...it is usually followed by "What flavor?"

BandAid...any adhesive bandage you put on a cut.

I once had a girlfriend from Iowa in highschool....took me awhile to figure out what the hell she was talking about when she said she'd like some 'pop'. Hahaha...

Google Groups mirror of the post (hopefully)

[lintux]

Can't check the link in the article, but I guess it's about this post. (Message-ID: )

The Joke

[Manip]

200 rounds of ammo: $70 Two ski masks: $24 Two black trench coats: $260 Seeing the expression on your classmates' faces right before you blow their heads off -- priceless. There are some things money can't buy, for everything else there's MasterCard.

Lawyers email address public

[swingheim]

Not to say what you should do with it... *cough* just noted that it was at the bottom of his letter.

Re:you're right!

[finkployd]

I think the point is he has not been sued yet, only threatened. There is no basis for a case.

Finkployd

Re:Brad needs a lawyer

[smack_attack]

I remember that, it happened in Savannah, GA during the 1996 Olympics hosted by Atlanta. The best part is the guy changed his business by adding one l little line to the 'c' at the end of Olympic, changing the name to Olympia.

A judge ruled in his favor when ACOG tried to sue him again.

Original MasterCard Joke

[shamir_k]

Google Cache of original mastercard joke. I can't believe MasterCard sent a C&D over a scik joke.

Trademark for "Priceless"

[tiny69]

Word Mark PRICELESS
Goods and Services IC 036. US 100 101 102. G & S: Financial services, namely, providing credit card, debit card, charge card and stored value smart card services, prepaid telephone calling card services, cash disbursement, and transaction authorization and settlement services. FIRST USE: 19980200. FIRST USE IN COMMERCE: 19980200
Mark Drawing Code (1) TYPED DRAWING
Serial Number 75658792
Filing Date March 11, 1999
Current Filing Basis 1A
Original Filing Basis 1A
Published for Opposition November 30, 1999
Registration Number 2370508
Registration Date July 25, 2000
Owner (REGISTRANT) MASTERCARD INTERNATIONAL INCORPORATED CORPORATION DELAWARE 2000 Purchase Street Purchase NEW YORK 105772509
Attorney of Record COLM J DOBBYN
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE

Re:He's safe

[R2.0]

In order for speech to be "slander", it must be untrue. Since parodies don't purport to be truth, they are not covered.

Oh, and you are really talking about libel, which is written. Slander is verbal.

Please get your terminology straight before talking out of your ass.

Looks like they're on a suing tour...

[Jugalator]

- Humorless lawyers suing attrition.org (includes reply to their letter)
- Humorless lawyers suing Ralph Nader... and losing

Should you laugh or cry at this?
TESS Info for trademark #2370508

Re:Looks like they're on a suing tour...

[Jetifi]

For the Attrition case, this page tells the whole story. Put simply, Mastercard ends up looking stupid.

It's not the the result which matters in America

[Moderation abuser]

It's the cost of the process itself. For individuals It doesn't really matter whether you'll win or not. The process itself is so long, slow and expensive that it'll bankrupt you.

Re:Brad needs a lawyer

[ptomblin]

which is somewhat unlikely

Back when Fox News tried to C&D Al Franken's book, I assumed, like everybody else in the world, that Fox's lawyers were actually graduates of law schools that teach things like that, but we were all wrong. Fox, being one of the largest media conglomerates in the world, evidently has a legal staff who all got their law degrees at Joe's Garage and Lawer Stuff Skool. You should hear Al Franken's own description of what happened when they went to court - the judge literally laughed when he told that not only don't they have a case, but if they persist they're very likely to find out that "Fair and Balanced" isn't trademarkable.

Isn't this old news?

[Cooper_007]

Come on folks. This was a usenet post from 2001.
What is it exactly about this message that makes it relevant now?

Cooper
--
This truth probably doesn't come as shocking news to any of you,
and if it does then you're stupid and I hate you.
- Everything Can Be Beaten -

Re:Isn't this old news?

[blirp]

Come on folks. This was a usenet post from 2001.

The MasterCard joke was, yes, but the AmEx wasn't. See, it's two links up there... :*)

What is it exactly about this message that makes it relevant now?

The fact that AmEx sent a similar letter April 13, 2004.

Re:He's safe

[K8Fan]

As the Supreme Court majority opinion in "2 Live Crew vs. Rose-Acuff Music" said:

Parody, even witless and stupid parody, is deserving of the highest level of protection.

The Amex Joke (they sued over this?!?)

[Tolvor]

The MC joke was tasteless, and i can see MC execs wanting to kill the joke, as it simply isn't funny. The Amex joke below seems almost complimentary, as it implies that having the AmEx card gives you special privilages. I suppose that if a popular celebrity gave them a free endorsement, they would issue a cease-and-desist letter. No wonder AmEx is the card chosen by the select few who don't want their card to be accepted in many stores.

You are invited to become a member of the American Expressway, one of the newest and most innovative road systems in America. There are many advantages to the American Expressway over the standard tollways, parkways, highways and freeways but by far the biggest advantage is:

No Preset Speed Limit!!!!!!!!!!!!!!!!!!!!!!

Instead your personal speed limit is determined by your vehicle, your personal resourcefulness and your past speeding patterns. When you enter the expressway your personal id number is transmitted to Central Control to tabulate your tolls and record your initial speed (all AE members may travel at 55 with no restrictions). If you decide to pursue a greater speed then an authorization will be sent to Central Control and our highly specialized, non deterministic and little understood AI algorithm will decide if you are approved for your new speed. If you are not then a Service Technician (formally known as a State Trooper) may stop you to ask a few questions to verify that you were capable of handling your new limit (Do you increase throttle to induce oversteer in a decreasing radius turn?), that you have adequate resources (Is that a Crosley Wombat V16?) and that you are not too far out of your previous speeding pattern (Have you ever driven at 180 mph before?).

Membership has it's Privileges

To apply for membership call 1 800 HAUL ASS

Posting Date.

[A Commentor]

It would be a little more interesting if it didn't appear to have been posted on April 1st.

http://www.netfunny.com/rhf/jokes/01/Apr/mcrhf.h tm l

Re:Posting Date.

[ticklemeozmo]

It would be a little more interesting if it didn't appear to have been posted on April 1st. http://www.netfunny.com/rhf/jokes/01/Apr/mcrhf.htm l

Ooo, swing and a miss.

Most websites owner sort things chronologically, meaning a sorting of descention. Applied, that would be sorted by: Year, Month, Day, Hour, Min, Sec.

So in your example above, the 01 would be year.

Re:B*lls??

[cwis42]

Do not forget, about fifty percent of the population doesn't have balls neither.

Re:He's safe

[esme]

i can't read the linked story now b/c it's slashdotted...

but, there's an interesting wrinkle in the protection of satires: there was a case in the nineties (an o.j. simpson parody in the form of 'cat in the hat'). the case hinged on the fact that satire only lets you use the work you are parodying. i.e., you can't use one work to parody something else.

now, parodying the mastercard stuff is probably ok, since it's the stupid, touchy-feely nature of the ads that's being parodied. but it's important to know that satire isn't a magic wand that lets you do anything you want.

-esme

Here's the Supreme Court Ruling:

[Whatthehellever]

Hustler Magazine, Inc. et al. v. Jerry Falwell

http://www.bc.edu/bc_org/avp/cas/comm/free_speec h/ hustler.html

No. 86-1278

SUPREME COURT OF THE UNITED STATES

485 U.S. 46

Argued December 2, 1987

Decided February 24, 1988

Syllabus

Respondent, a nationally known minister and commentator on politics and public affairs, filed a diversity action in Federal District Court against petitioners, a nationally circulated magazine and its publisher, to recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the publication of an advertisement "parody" which, among other things, portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. The jury found against respondent on the libel claim, specifically finding that the parody could not "reasonably be understood as describing actual facts . . . or events," but ruled in his favor on the emotional distress claim, stating that he should be awarded compensatory and punitive damages. The Court of Appeals affirmed, rejecting petitioners' contention that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U. S. 254, must be met before respondent can recover for emotional distress. Rejecting as irrelevant the contention that, because the jury found that the parody did not describe actual facts, the ad was an opinion protected by the First Amendment to the Federal Constitution, the court ruled that the issue was whether the ad's publication was sufficiently outrageous to constitute intentional infliction of emotional distress.

Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be accepted. "Outrageousness" [47] in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. Pp. 50-57.

797 F. 2d 1270, reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, AND SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 57. KENNEDY, J., took no part in the consideration or decision of the case.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of [48] privacy, libel, and intentional infliction of emotional distress. The District Court directed a verdict against respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the defamation cl

Brad Templeton

[maggard]

For all of those who don't know who Brad Templeton is (and judging from all the posts so far none do) Brad was the Founder, CEO, and Publisher of ClariNews, the first public-subscription online newswire (via NNTP). He's also the author of the fantastic "10 Big Myths about copyright explained" so yeah, he knows his rights. Oh, and he's Chairman of the Board of the EFF . In short he knows what he's doing and AmEx's lawyers definately tangled with the wrong perosn.

Re:What to do? What to do?

[abb3w]

As I understand it, the reason that most sites giving basic advice add "IANAL/consult a professional" is threefold. First, laws vary from state to state; good advice in California may be very bad advice indeed in Massechusetts. Second and similarly, sometimes the big picture hangs very heavily on a couple of very small but important details; lawyers are well practiced at straining at gnats and swallowing camels, and knowing which is which is not something for an amateur off death row to try. (If you're on death row, what else do you have to do with your time?)

The third reason, however, is the most important. As I understand it, if you give someone legal advice, it both makes you civilly liable for any bad consequences of taking it (IE, you get sued next if they lose the case), and may constitute the criminal offense of practicing law without a license if you are not admitted to the Legal Bar for the jurisdiction your advisee is in. I've heard Arizona is an exception to the second half of that, but I don't know the truth of this.

Many lawyers offer a free initial consultation; if you have a problem, taking advantage of that sounds like a good place to start.

Brad *doesn't* need a lawyer

[maggard]

Brad needs a lawyer

Uh, no.

As I pointed out elsewhere Brad is well aware of his rights (early online publisher, author of "10 Big Myths about copyright explained", Chairman of the Board of the EFF ), rather folks need to be more aware of their own rights.

Also for all the lip service paid to EFF on /. it's pretty telling that this story was up for an hour, your posting was +5, and nobody here had a clue as to who Brad is...

Re:He's safe

[_Sprocket_]

...i.e., you can't use one work to parody something else.

For example, Penny Arcade's parody of American McGee and Strawberry Shortcake.

Its not self censorship

[Srin Tuar]

Many sites (slashdot excluded) and certain types of client filtering software implement a naive filtering algorithm which block out easily recognized profanities ("fuck", "shit", etc)- perhaps even blocking the whole page or post.

Using alternate spellings does not in any way make the word unintelligble, but it does make it more resitant to automated censorship.

So, personally, I dont have any problem with the practice.

mirror / cache here!

[kylector]

Google cache of original on netfunny:

http://64.233.167.104/search?q=cache:EbL5xyjk04AJ: www.netfunny.com/rhf/jokes/91q2/amexprew.html+&hl= en&ie=UTF-8

Google cache of original in Groups:

http://groups.google.com/groups?q=%22American+Expr essway%22&hl=en&lr=&ie=UTF-8&selm=S253.433d%40look ing.on.ca&rnum=1

Re:What's the point of IANAL disclaimers?

[applemasker]

Attorneys' speech is protected by the "litigation privilege" when advancing a client's interests. Generally, this immunity covers acts and statements made in connection with the pursuit of litigation (in particular, it protects attorneys from suit for things such as liable and defamation). Depending on the particular jurisdiction, as well as on the specific circumstances, the privilege may be qualified or absolute.

The privilege may not exist in the circumstances you describe, hence the disclaimer.

(Note - this is not legal advice.)

Let jAmEx/MasterTard know you hate 'em!

[infochuck]

Everybody reading this thread should contact AmEx and let them know they'll be cutting up their card(s), or never getting one.

I also suggest calling/emailing everyone you can at MasterCard for their consistent badgering of parodies - most recently (and notably) Ralph Nader's ad.

Here's some MC contact info. Anybody got some for AmEx?

Tell 'em you don't appreciate companies that attempt, over and over again, to bully others into compliance with THEIR wishes, against the letter and spirit of the law, and you won't stand for
it. Call 'em again and again. They like hearing from irate consumers.

Some folks are claiming this is "old news", but it's been going on for some time, and resurfaces every once in a while - send these folks a message NOW, and maybe they'll finally figure it out.

MasterCard Executive e-mail addresses:
Sharon Gamsin Vice President, Global Communications
sgamsin@mastercard.com
Phone: 914.249.5622

Chris Monteiro Vice President, Global Marketing Communications
chris_monteiro@mastercard.com
Pho ne: 914.249.5826

Ayde Ayala Global Communications Coordinator
ayde_ayala@mastercard.com
Phone: 914.249.5388

Marc Levy Director, Global Marketing Communications
marc_levy@mastercard.com
Phone: 914.249.3233

PR/Media Inquiries:
Christina Costa
Ph: +1 914 249 4606
Email: christina costa@mastercard.com

North America:
Michael Madden
Tel: +1 914 249 1354
Email: Michael Madden@mastercard.com

(Media Contact only)
MasterCard International
Christina Costa
1-914-249-4606
christina_costa@mastercard. com

Sony Walkman. In Austria

[UrgleHoth]

Sony lost their exlusive use of walkman trademark in Austria in 2002.
Read about it here and here.
Or search google for sony walkman trademark case austria

Re: Loyeerin' fer the rest of us...

[schodackwm]

Actually, the pinheads may know that.

From the C&D letter: "This material (the "Infringing Material ") blatantly copies the sequential display of a series of items belonging to one or more individuals, showing, the "price" of each item, and, at the end, infringes, with impunity (emph supplied), the MASTERCARD Mark and the Priceless Marks."

from one of 3 nearly identical cites at http://dictionary.reference.com/search?q=impunity

impunity: Exemption from punishment, penalty, or harm.

Granting -- since IANAL and have NO desire to be one (henceforward: IANALAHNDTBO) -- legalese may give some counterintuitive meaning to impunity, one might still wonder if the pinheads really did graduate only from "Billy-Bob's Loyeering Skool" (after flunking hs english?)

Please distinguish among "interesing," "insightful" and "informative." The latter two require substantiation!

Re:He's safe

[Aneurysm9]

That was Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). It should be read by anyone commenting on copyright and parody before posting as it is the seminal parody case currently controlling U.S. law.

Why it's necessary to publicise this

[btempleton]

Some have asked why I respond to them with more humour instead of a more formal response, and whether they have to do this to protect their trademark.

As some of you know, I am with the EFF, and so I don't lack for legal advice on cyberspace free speech issues. That's not the question.

This letter is an example of a new phenomenon I call "spammigation." Automated bulk legal action. I suspect Amex told their lawyers to just threaten everybody using an Amex trademark on a web page without authorization. Or perhaps the lawyers convinced Amex this was a good idea. In worse cases, DirecTV sues everybody who bought a smart card writer, and the RIAA sues hundreds of Kazaa users at once.

They send threats or sue because they know they are the big guy and the little guy will almost always cave in. It's easy and cheap. For a typical web site owner, it's too expensive to even figure out if you are within your rights, certainly too expensive to get a lawyer. So people just take their web sites down.

Every so often they get somebody like me who knows his rights, and I predict they have no desire to fight me once they see who I am and that I can defend my rights. So I'm not in much danger personally. The people in danger are the other people who got this letter and didn't know the truth.

So I make fun of them to ridicule them, to point out what they are doing, and to inform people that they don't have to give in to impressive sounding threats on their parodies. By doing it in an amusing way, people pay more attention to it.

They do need to defend their mark, but parodies are not infringing so they don't need to send C&D letters on those. They do it because they are lazy, or because they want to be very sweeping, or perhaps because the lawyers want to bill the client for more hours, who knows? It's a foolish strategy, but they do it.

And another reason for the publicity is that it teaches them to be more careful, and not to just threaten willy-nilly. I want it to come back and bite them. Last time, Mastercard got people cutting up their mastercards, and the law firm doesn't want the client calling to say "what the hell did you do, customers are cancelling accounts!"

So write Amex if you don't like them bullying. Tell them and the lawyers there is a cost to bullying in the modern age.

(If you don't get /.ed. My pages have been /.ed before and handled it fine but for some reason not today. The server is up and furiously spitting out pages but obviously not fast enough.)

Re:What's the point of IANAL disclaimers?

[Chiasmus_]

I had always assumed that such disclaimers were necessary because there was some law that could make lawyers liable for giving bad legal advice otherwise, but if that is the case why hasn't anybody used such a law to counterattack one of these "Your parody is illegal" C&D letters?

IANAL, but I am a paralegal, and I can answer this one, although obviously this is not legal advice.

The "this is not legal advice unless you're paying me" disclaimer is there to avoid malpractice liablity. If you, as a lawyer, give someone some bad or misleading legal advice, and that person suffers financial harm, they can sue you.

It's exactly the same reason all online doctors post little more than "see your doctor immediately." If you said "I slept funny and I'm having some minor neck pain," and a doctor replied, "Ah, that's nothing, take two Asprin," and you ended up paralyzed because you hadn't fully described your symptoms... that doctor may well be liable for malpractice. And you can sue.

However, it is *not* malpractice to make a legally unfounded threat. A threat is not considered legal advice. There's a huge legal difference between saying "Put on a pink dress or I'll sue you!" and "As a lawyer, I advise you to wear a pink dress to your court appearance." The first is protected speech; the second is an actionable tort.

Like the recently settled Pan-IP patent case

[geekotourist]

As written about in this recent article. PanIP thought they could extort licence fees by going after tiny businesses. If PanIP thought they had a real patent they'd have gone after Amazon or Buy.com: nope- just little people who can't afford to fight. But these little businesses found each other, joined in a group, fought back as a group, and won.

For C&D letters Chilling Effects is our group defense, as is the EFF in general.

Even legal journals have to (self-censorship)

[geekotourist]

One of the largest newsletters going out to free-speech advocates, lawyers, judges and the like has to do this. This article in 2001 covered it. Its because of all the filters, and is doubly difficult when your newsletter's topics include censorship itself. Thus all the "sez" and "druks" and "Promography" and "Right to Azzemble."