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

Pft, wrong threat

[Skyshadow]

The power to sue a website is insignificant compared to the power of the /. effect.

Re:Pft, wrong threat

[mirko]

Do you mean Slashdot got paid by Mastercard to close netfunny its own way ?

Re:Pft, wrong threat

[RLW]

Oh, that's insidious.
Step one, Send threatening letter to web site
Step two, get story posted on slash dot.
Step three, wait and watch as web site goes down faster than a pending injunction.

Re:Pft, wrong threat

[mrgeometry]

Does that mean step **four** is profit?

Re:Pft, wrong threat

[the_consumer]

We're talking about credit card companies. Profit is implied.

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

[blair1q]

Brad's okay, even if he did take pecuniary advantage of Usenet and has a somewhat spotty sense of humor for a guy who runs a newsgroup with "funny" in its name.

But he's pissing in the wind. And that's all it is, wind.

Trademark holders must threaten everyone who coopts their mark, even when it seems like it's almost certain to be legitimate fair-use. If they don't make a sincere effort to protect the trademark, the failure to do so becomes evidence against them in cases the bring where the mark has actually been abused. Trademarks have been lost that way.

Same deal with Mattel suing over Barbie songs, Sony suing Sony's cafe, etc. The bad part is when they end up having to go through with the case and the big guy's lawyers beat up the little guy's lawyers and create new case law that erodes fair-use.

Brad's response that he'll bring up Parody and Satire is enough for them to argue that they didn't see value in fighting, but since they don't fight it doesn't create case law, and everyone has their asses covered. And it'll end there, just like the MasterCard threat did.

It's kind of odd that Brad doesn't get this right off the bat, seeing as he's also the guy who wrote the first real position paper on intellectual-property laws for the Internet.

N.B., IANAL, (but if the bar exam wasn't all about fiddly bits in real estate and divorce law and trial procedure I probably would be). I just like arguing with them and winning on the net.

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

[RazzleFrog]

Genericide is not a legal term but a marketing term. The case you quote has to do with a company not policing its trademark when it is used in business by other businesses. We discussed that already. That has nothing to do with this case.

A joke is never commerce. Your example is a joke. A comedian using a trademark name in an act in no way would confuse people to think that that joke is a product of the company holding the trademark. That might be the lamest argument I have ever read. Do you think that every stand up comedian gets permission from every company that it jokes about. Absolute nonsense.

Policing a trademark means not allowing other businesses to use the trademark in business. How many times do I need to repeat this?

Copyright on the other requires no such policing. It is in no way similar to Trademarks. It is covered under different laws and maintainted by the Library of Congress not the US Patent and Trademark Office.

You have made no substantial rebuttals to any of my points. Policing trademarks has nothing to do with people using a trademark in a conversation. It is an abuse of the system to even suggest it.

And learn how to format your posts.

A little slow...

[bbrazil]

Web site hosting for anybody: $10/month and up

./ed after just one comment: Priceless

Re:A little slow...

[gandalf013]

Nope, getting the "spelling" of /. incorrect: priceless :)

Re:A little slow...

[MostlyHarmless]

./ed after just one comment: Priceless

-bash: ./ed: No such file or directory

. . .

~$ watch -n 10 w3m slashdot.org

Re:A little slow...

[CaseyB]

Try 'cd /bin' first.

If that doesn't work, you must be using some newfangled "visual" editor instead. Those waste a lot of line printer paper.

Re:A little slow...

[Ripplet]

./ obviously being the parody site of /.

Hey you there on ./ decease and resist ... or something!

He's safe

[PingKing]

I'm not a lawyer but I'd bet the guy is pretty safe. Satire is protected from accusations of copyright infringement and IMO there's not a judge in the land that wouldn't view the AmEx parodies as just that.

Re:He's safe

[Mazzie]

Also you have to look at the other side of the coin. Can you imagine this country, in this day and age, if true satire/parody was not protected?

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.

Re:He's safe

[moviepig.com]

Indeed, an obvious instance of parody, and therefore equally obviously protected.

Why, then, is there no mention of any counterclaim against MasterCard for a frivolous lawsuit (which, I think, covers such plainly deliberate harrassment)?

(I'm no trial-judge, but I pay one on TV...)

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.

Re:He's safe

[BrynM]

Can you imagine this country, in this day and age, if true satire/parody was not protected?

Mybe I'm becoming a cynical slashdotter, but I really expected the typical slashdot finish to this sentence:

Can you imagine this country, in this day and age, if true satire/parody was not protected? ...oh wait.

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

Brad needs a lawyer

[ptomblin]

What Brad needs, instead of writing sarcastic responses himself, is to get a lawyer to write a letter pointing out to these pinheads that satire is constitutionally protected, and if they don't want to make asses of themselves and get laughed out of court like Fox News did against Al Franken, they should shut the fuck up.

Preferably in those exact words.

Re:Brad needs a lawyer

[jdifool]

Well, this is what he did, basically, though with slightly different words... :)

You don't need a lawyer when your common sense is enough to protect you... or at least you shouldn't need it.

Regards,
jdif

Re:Brad needs a lawyer

[lukewarmfusion]

Nah, I don't think he's willing to take them that seriously. He's right that these letters are not all that serious themselves, but mostly scare tactics.

All he has to do is demonstrate knowledge/awareness of the law, his rights, etc. and they'll back off. He's done nothing wrong and they know it - so their threats are empty and he calls them on it.

Re:Brad needs a lawyer

[Ami Ganguli]

You're probably right, but think there's something wrong when you're compelled to spend money on a lawyer every time somebody makes a stupid threat.

If he's confidident enough about his position to write the response himself then more power to him.

Re:Brad needs a lawyer

[ptomblin]

Many lawyers will write stuff like this for free. Some years ago the Canadian Olympic Committee sent Orienteering Ontario a letter saying that the logo we were using for our sport infringed the stick figure logos that they'd been using since 198x. Well, what they didn't count on was that one of the members of the Canadian national Orienteering team was a lawyer, so he wrote back a letter that basically said we got the logo from the World Orienteering Championships of 197x, and they could stuff their claim up their collective asses, and we never heard from them again. So they went after some guy named Olympus for calling his pizza restaurant "Olympic Pizza" instead.

Re:Brad needs a lawyer

[Gulik]

What Brad needs, instead of writing sarcastic responses himself, is to get a lawyer to write a letter pointing out to these pinheads that satire is constitutionally protected...

This presumes that the aforementioned pinheads really don't know that his parody is constitutionally protected, which is somewhat unlikely. They know that the charges in their C&D are groundless, but figure that he will be cowed just because he got a letter from a lawyer. He's disabusing them of that notion.

Now, if they're dumb enough to actually bring suit on these charges, I'm sure he'll get himself a lawyer. Hell, there will probably be a pro-bono line outside his house -- who wouldn't want to get a slam-dunk against American Express on their resume?

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.

Re:Brad needs a lawyer

[Mazzie]

Law schools are pumping out more lawyers than the economy can support. I think the new trend of sending out thousands of cease and desist letters is the law firm form of telemarketing, phishing, or even spamming.

I think they look for a mega-response. If they get a response from a company written by a big law firm it tells a lot about what the company has to lose, and how big their bank account is.

IMO, most lawyers are just looking for an easy settlement anyways. Use a 'bot to dig the internet for 'infringements', send out 10K letters, get 5 settlements for 25K each?

Re:Brad needs a lawyer

[AndroidCat]

Every time the Olympics come to a city, they have lawyers run around threatening all the long-established Greek restaurants, travel companies, etc. Anyone know how they managed to obtain obtained such an overarching trademark/ownership on that word? I understand Zeus wants a word with them.

Re:Brad needs a lawyer

[jdifool]

True enough.

But the real power of his answer is that he made a parody of this cease-and-desist letter, hence making the point even clearer.

It's just like asking them to stick their fist in their ass instead of only one finger... :/

Regards,
jdif

Re:Brad needs a lawyer

[jratcliffe]

From what I've heard, Fox (and particularly their General Counsel's office) knew that the suit didn't have a snowball's chance in hell, knew that they'd lose, and knew that they'd look like idiots if they went forward. They were forced to do it by Bill O'Reilly. Probably shouldn't blame the lawyers on this one, sometimes, as an attorney, you're forced to argue something you don't believe for a second.

This guy has more b*lls than I.

[dexterace]

Soon, he will much have less b*ndwidth...

B*lls??

[Seekerofknowledge]

This guy has more b*lls than I.

What, can people not say balls now? If not, could someone please say why?

Oh, maybe he means bills, as in dollaz. Meaning, he can afford the law suit?

Either way...

Re:B*lls??

[CaseyB]

This guy has more b*lls than I.

What, can people not say balls now? If not, could someone please say why?

It looks to me like he was just saying that the guy has more lls, blls, bblls, or bbbbbbbbbblls than himself.

Re:B*lls??

[dr_dank]

What, can people not say balls now?

I think he wanted to avoid offending people. He must have heard that there are a lot of people into eunuchs here.

Re:B*lls??

[Sgt York]

Yes I agree, because the media is so devoid of sex these days.

If it weren't for the porno mags under my Dad's filing cabinet, I wouldn't even know what this "sex" things was! I mean heck, June and Ward still sleep in seperate beds!

Oh crap, I said heck, I'm going to hell...

Uh-oh...

Hell Yeah!

[kwpulliam]

Let's here it for Simple and To the point legal arguments. Both the Amex and the MC responses are great (Though the MC Response was better)

you're right!

[arpy]

"This guy has more b*lls than I."

Judging from his tendencey to get sued, he certainly would seem to have more bills than you.

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

Posting a funny parody...

[Frennzy]

Posting a funny parody...free.

Getting a C&D letter from MC/AmEx...free.

Having /. do more to take away your free speech than MC or AmEx could ever dream of....priceless.

What to do? What to do?

[StateOfTheUnion]

Are there any site that give advice on how to react to a situation like this? Most that I have seen basically say IANAL and to consult a professional . . . it seems if you don't have money, its hard to get good advice . . .

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.

Larry Flynt

[Mazzie]

Billion dollar companies still struggling to overcome protections championed by a pornographer: priceless

obligatory

[dj245]

10/month hosting at a craptastic company: $10
Writing an article about trouble with the law: $0
Bandwidth overage charges from being slashdotted: $260
Being parodied in a slashdot posting because your lawsuit stems from the fact that you made a parody of a commercial: Priceless

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

Paying the lawsuit penalties

[AtariAmarok]

What if the guy loses the suit and pays for it with his American Express card?

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.

Black Friday?

[chendo]

Accordingly, we demand that you confirm immediately and no later than Friday, April 13, 2001, that you will remove the Infringing Material from the web site www.netfunny.com and that there will be no further publication of the Infringing Material or any other material which infringes MasterCard's rights as set forth above.

Is it just me, or is it just a coincidence that day is a Black Friday? ;o

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:Trademark for "Priceless"

[Anonymous Coward]

FIRST USE: 19980200. FIRST USE IN COMMERCE: 19980200

Would that be the 0th day of February, or the 2nd day of Nomonthuary?

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.

Did the lawyers actually look at the website?

[91degrees]

Your unauthorized use of AMERICAN EXPRESSWAY ... is likely to cause consumers to be confused, mistaken, or deceived as to the source of origin of your services.

...In addition, your continued use of these marks constitutes a deceptive business practice and unfair competition in violation of state law.

Considering that he's not running a business, claiming to run a business, or using these terms for advertising a business, these statements seem rather curious. Did they just use a search engine and automatically send out a nastigram based on the results? Would my writing "American expression, Membership has its Privileges" in this post result in Slashdot getting a letter? (If so, sorry guys)

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.

This guy has more b*lls than I.

[DougMackensie]

I'll say Mr. "anonymous reader"

I really hate self-censorship.

[CGP314]

This guy has more b*lls than I.

Either have the balls to use the word balls or pick a different word. Writing b*lls is just stupid. Allow me to demonstrate:

On slashdot I can say: I thought that anonymous coward was a fucktard.

Relaying the same information to my mother in an email I would say: I thought that anonymous coward was an idiot. Not I thought that anonymous coward was a f*cktard.


-Colin

Re:I really hate self-censorship.

[Lord Ender]

I have no problem saying 'fucktard' to my mother... guess she's just cooler than yours.

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

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.

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.

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...

What's the point of IANAL disclaimers?

[roystgnr]

Or more specifically, what's the point of the "I am a lawyer, but this is not legal advice unless you're paying me" disclaimers that I've seen? 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?

I mean, if lawyers can put grossly inaccurate legal threats in writing and get away with it, why would lawyers giving out accidentally inaccurate advice have anything to fear?

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.

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.

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

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

As an aside...

[autechre]

2-digit years? STILL? Gah.

The worst is when people express a date like 01/04/03. Great; how the hell am I supposed to know which is which? I have to figure out whether you were from the U.S. and meant January 4, 2003, or from somewhere else and meant April 1st, 2003.

(If you don't think that this is a problem, consider that many restaurant kitchens employ large numbers of people from Spanish-speaking countries. Consider that food has expiration dates.)

I see many people still writing dates like this, too. I guess they saw "Y2k" as just some buzzword that the Morlocks were supposed to fix for them, and it didn't have anything to do with what they did personally.

Really, if you want a short date, you could at least use the 3-letter abbreviation for the month so that it was less confusing. Asking everyone to write ISO dates is probably too much, but dd/dd/dd is just evil. YY/mmm isn't all that much better, although if you're looking at it as a directory structure, it should be obvious that the directories would have to be in descending order. I mean, who would group things by the first day of the month, then the month?

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.)

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.