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Wal-Mart Parody Site Censored by DMCA
davidwr writes "Wal-Mart used the Digital Millenium Copyright Act to temporarily shut down a university student's parody of the Wal-Mart Foundation." The story's details are also available via BusinessWeek. From the article: "Papasian launched the Web site April 16 for an art class at Carnegie Mellon University called 'Parasitic Media.' The class teaches students about the political uses of satire in the media. He acknowledged using Wal-Mart's graphics on his Web site but said he believed he could use the images as part of a parody."
If you alter the content, they have no claim against DMCA. MalWart != WalMart.
--- Nothing clever here: move along now...
Exceptions to copyright for parody, fair use, etc. only apply to those who have lawyers.
Real Daleks don't climb stairs - they level the building.
This is getting way to much press. Lemmie put it to you this way:
Walmart Foundation: www.walmartfoundation.org
Parody Site: www.walmart-foundation.org
Walmart is NOT bitching about this.
He basically has a site where people probably stumble onto when they are trying to go to a legit site. Walmart's ONLY beef was that he was using their images.
I can't tell you how we ALL have known since the web was invented that you don't steal other peoples graphics. Sure, there may be some grey area with parodies, but its the same thing we knew when we were just getting into making HTML.
But, since this kid wants press, he starts using "CENSORED BY THE DMCA" so we'll all cry fowl.
He rolled the dice and lost... and all it was was over the stupid graphics.
I say, "its an art class, how about making PARODIES of the IMAGES too?"
No extra publicity in that, though...
Good quote, too many chars. Seriously, the slashdot 120 char limit sucks!
Damn, for once the Internet Wayback Machine let me down -- no entries for http://www.walmart-foundation.org./
--
get a free laptop
"The goal was to make the site look like it could be a real site from a company like Wal-Mart, but have text that was so ridiculous that anyone who read it would realize that it was absurd," Papasian said in a statement on his revamped Web site. "If anyone believed it to be a real Wal-Mart site, that is only a testament to the degree of absurdity that exists within corporate America today."
Due to all the retarded behavior that our fellow citizens exhibit on a daily basis I am never surprised when I see people falling for direct parody.
I am also not surprised that corporations are allowed to shutdown *what was likely fair use*. Sadly, someday, we will all look back on this and say, "look how free we once were. It survived 400 hits before it was taken down. They didn't even have to approve the webpage before it was posted."
there are very clear precedents stating what is cool and what isn't.
Making a parody is cool. Using the original artwork to create your parody isn't.
Even when making a parody of a song, you must pay royalties on the original and you must obtain permission should you use any portion of the original mechanical.
If you're gonna create a parody site, you simply cannot snag artwork from the original, and you certainly can't use the company's actual logo!
Jory
I thought the DMCA protected protection-schemes, not copyright law.. It's not like Walmart put copy-protection on the JPEGs. I didn't think the copyright would apply anyways, wouldn't this site be allowed fair use of the images? It's not like he's trying to compete with them.
I still hate the DMCA..
I went to eat some animal crackers and the box said, "Do not eat if seal is broken." I opened the box and sure enough..
How to shoot yourself in the foot in three easy steps.
Simon.
http://www.bc.edu/bc_org/avp/cas/comm/free_speech/ hustler.html
- Just my $0.02, take with a grain of salt, your mileage may vary.
If he hadn't leveraged any WalMart code or graphics he wouldn't have any problems. He could still do the site if he were to build a look alike from scratch. Some of the graphics he used were Wal-Mart property, and even in parody the use of their graphics would not be legally protected.
It looks like WalMart imports more than just cheap goods created by virtual slave labor from China.
Now they're further hurting our trade deficit by importing clamp-down tactics from the Chinese communist government!
I'm a big tall mofo.
Apparantly, its not just Soviet Russia. It happens in the USA now too. Quite sad, actually, that the cold war was fought for 50 years against a totalitairan regime, only to win, and take on some of the elements of that regime ourselves.
Reality has a liberal bias
I think Walmart gives an example of why 100% pure capitalism is a bad thing. Walmart tends to lower the standrd of living in many of the communities it moves in, and increases the unemployment rates. Even when their practices are perfectly legal, they tend to hurt many of the small businesses in the community. Free market, you say? Well, if 'free market' lowers the standard of living for so many people, then the concept is flawed. A lot of free market supporters use the same fervor as the socialists/communitsts do when defending their idealogy and fail to realize there is no such thing as a perfect system. I am still a Libertarian, but some Wal-Mart fan-boy's need to calm down and analyze exactly what they are supporting.
Of course the student would want to draw attention to this. One person's "overblown" is another person's "needed publicity."
I'm guessing that if this went to court, it would be thrown out as this site is fairly clearly a parody site. This allows considerable freedom in copying images, ideas, logos, and so on.
Much like the Gone with the Wind publisher battling The Wind Done Gone, it can be fairly counterproductive for large corporations to try and fight these parodies. They do nothing but draw unwanted attention to their rather nasty behavior.
"Literature should not be suppressed merely because it offends the moral code of the censor." ~ William Orville Douglas (1898-1980) US Supreme Court associate justice, 1935-75, professor of law at Yale
"Censorship ends in logical completeness when nobody is allowed to read any books except the books that nobody can read." ~ George Bernard Shaw (1856-1950) British playwright & novelist
"The Internet treats censorship as a malfunction and routes around it." ~ John Perry Barlow (1947-) Wyoming cattle rancher, a lyricist for the Grateful Dead
"I believe in censorship. After all, I made a fortune out of it." ~ Mae West (1892-1980) American comedienne from "My Little Chickadee," 1940.
"Censorship is almost systematically the weapon of first resort for governments in uncertain political situations. So not only are the famous writers and bold journalists in danger; at every level of public and private life, the freedoms to think, read or write are denied. In the absence of a free press, other human rights abuses flourish unabated. Nothing is reported, criticized, questioned. The example of imprisonment, torture or execution imposes a further silence. A blindly obedient mob mentality is encouraged, driven by extremist religious or ethnic loyalties. The citizens do not know what is happening. Fear and ignorance permeate discussion." ~ Marian Botsford Fraser
"Censor: A self-appointed snoophound who sticks his nose in other people's business." ~ Bennett Cerf
[quotes from zaadz.com]
He who knows best knows how little he knows. - Thomas Jefferson
No... if you want to commercially MARKET a parody of a song, you must pay royalties and obtain permission. If you want to simply make a parody, and give it away - there's nothing to stop that (unless you find financial gain from that parody).
Kinetic stupidity has a new brand leader: Allen Zadr.
From the article: "An interesting aspect of the cease and desist is that it was signed by a lawyer who wrote that she was acting on behalf of Wal-Mart Stores, Inc. This statement unintentionally emphasizes one of the main points that my parody was trying to prove all along: The Wal-Mart "Foundation" is nothing more than a front group for Wal-Mart Stores Incorporated, and should not be confused for a real charitable non-profit."
... always makes me feel cheap and sleazy. Like it's something I shouldn't be doing. One of the many reasons I like shopping at Wal Mart.
Mod down people who tell people how to mod in their sigs
Wal-Mart does not care about this kind of bad PR. The people who would find this type of action detestable are not Wal-Mart's target demographic. Wal-Mart has continually eaten bags of poop in the mainstream media over their staunch opposition to unions and the way they've destroyed most mom-and-pop type stores, but this hasn't translated to lost sales for them, because the people who shop at Wal-Mart care about one thing, and one thing only: low prices. As long as this suit doesn't lead to higher prices, Wal-Mart will come out of it financially unscathed.
rooooar
Well, it's not a particularly good parody perhaps. If I were doing it, I'd subtly change the images for amusement value.
My latest favorite parody is Boring Boring, a parody of Boing Boing.
How about we just give him a C+ for his school assignment and keep the lawyers out of it?
'Scuse me? You want professors to offer a reward - presumably, higher marks - for producing specifically right-wing propaganda?
Real Daleks don't climb stairs - they level the building.
CHOOSING to shop at wal-mart, eat at McDonalds or believe in a mythical superbeing?
Sometimes there is no choice, the town has one WalMart and the rest of the small businesses go under leaving you no choice in where to buy -or- you must travel far away to go to a small independent shop.
Greed is the driving factor among everything these days, the competition is brutal and the labor is cheap....is this a lefty view? or just a rational one?
He who knows best knows how little he knows. - Thomas Jefferson
Walmart is only objecting to the use of their logos, not the parody itself. This is a farily reasonable request. No one has actually been sued, WalMart simply had their lawyers send out a Cease and Desist letter. They probably send out several of them every day. WalMart is well within their rights to demand this. While the parody site was intending to make this look as much like an official WalMart site as possible, the can run afoul of trademark law. The right thing to do is to parody the WalMart graphics as well. Not a lawyer, but WalMart is probably in the right on this one.
bance.net
The use of the DMCA in ANY expression of free speech is so bogus that attempting to use the courts for such purposes should result in the automatic suspension of the laywer's licence.
:-)
The DMCA was NOT designed for the purpose of stifling free speech. (We have libel laws and slander laws for that.
Some humourless lawyer would argue that his client is afforded every protection of the law. I would argue that the DMCA is NOT a protection under the law.
The case is like arguing that you can ONLY have ONE of anything. Reproduction of anything at anytime for any purpose would be outlawed.
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
Is a rework of Stevie Wonder's Pastime Paradise. Who is taking from whom here? Of course, I'm sure Stevie was duly compensated.
Yes, people shop at Wal-Mart because of low prices but the reason they have to shop low prices is that their wages have gone down (in real terms) over the past 30 years.
As an example, my wife graduated from HS in 1974 and her first job was at paper plant. The job was union and paid $7 per hour and worked 40 hours a week. This, mind you, for a HS grad with no college and no special skills in a small city north of Seattle. By the time she left that job (in 1980) she was making over $10 per hour and getting full medical.
Then wages went into the toilet. Now kids are lucky to get a $7 job (at Wal-Mart) and work 20-hours a week.
In 1974 you could buy a house ($35,000 for a 3br/2ba home in the Seattle area) with a $7/hour job. In 2005 houses there average $250,000. Try buying one of those right out of HS.
So ya... people shop for cheap prices but only because we don't have much of a choice any more.
No one ever had to evacuate a city because the solar panels broke!
The text was flamingly obvious. I said things like (paraphrasing) "we're just undoing a very small portion of the damage we do to communities, because it promotes our image and is a great write-off."
-bugg
- And rightly so. His First Amendment rights are being violated.
Didn't you hear? The US government has officially declared that the first amendment must have been a "typo". They argue that it would have been easily edited out if they had used a program like Microsoft Word, but it wasn't so easy to edit once they had it down using ink and paper...
Libel applies whereever you attribute something in writing to someone who does not hold that belief. It is always legally actionable.
Check out the Flynt case, before the Supreme Court. Said libel also has to be *believable.* Hence, when Flynt published things about Falwell's mother's, ah, *taste*, it was found to be parody because no one in their right mind would believe it.
That's kinda what parody is.
Deere & Co v MTD Products, Inc was a competitor modifying Deere's mark in a 'humorous' way in order to both mock and identify the competitor for commercial purposes. It was a commercial message rather than the social commentary that one generally envisions when one thinks of satirized protected marks.
... The Constitution does not, however, permit the range of the antidilution statute to encompass the unauthorized use of a trademark in a noncommercial setting such as an editorial or artistic context".
The Dallas Cowboys, Inc v Pussycat Cinema is, *again* a commercial case where "Debbie does Dallas" producers were enjoined from referring to the sports team in promotion of the film. Even trying to call that satire is a thin defense to begin with.
There are 3 tests commonly used to test the use of a trademark, however, see L.L. Bean, Inc. v. Drake Pubs., Inc., 811 F.2d 26, 31, 33 (1st Cir. 1987), where the First Circuit court protects the use of a trademark against an antidilution claim almost solely on the basis of the use being noncommercial. To quote: "The Constitution is not offended when the [Maine] antidilution statute is applied to prevent a defendant from using a trademark without permission in order to merchandise dissimilar products or services.
See also:
Yankee Pub. Inc. v. News America Pub. Inc., 809 F. Supp. 267, 279 (S.D.N.Y. 1992)
Simon & Schuster Inc. v. Dove Audio Inc. 936 F. Supp. 156, 164 n.4 (S.D.N.Y. 1996)
I don't see how the comments on libel are even relevant. The site was a parody and received a C&D only because of their use of trademarks. They did not allege libel, at least according to that story, and such a claim might also have to be evaluated in the context of political or social parody.
*Anything* is always legally actionable; that doesn't mean the cause of action is likely to prevail, and Wal-Mart was certainly unlikely to prevail in this instance.
This post is not meant to constitute legal advice; if you need advice for a specific legal situation, consult an attorney.
But what I enjoy even most is when this leads to the conclusion that it's because of the powerful corporations that these sorts of evil things happen.
This is the progressive circle of life. Progressives decide the establishment has a problem. Progressives pitch legislation that sucks to solve the problem. The legislation is enacted and then (shocker) it starts to suck. Progressives then use legislation sucking as proof that the establishment has a problem. Progressive pitch new legislation that sucks even more. Elton John starts singing ...
If Microsoft made toilet paper, it wouldn't actually remove anything but merely spread it around until everything is covered with a uniform layer of feces. Just like Internet Explorer...
Blank until
Your post hits the primary problem our nation has, inflation.
It is so sad that people in this country do not realize they are being ripped off. Under our current economic system, inflation screws the poor and middle classes. It is essentially a RECURRING tax on savings.
For example : try putting in the 7.00 per hour wage from 1974, then compare it to today.
$7.00 per hour in 1974 would be roughly equivalent to making $27.00 per hour today.
But it gets worse. Any money you try to save, is also worth less over time. The interest you earn on a bank account needs to make at least the level of inflation just to stay the same in terms of purchasing power.
It seems people are just plain clueless about how they are being royally screwed by the governments economic policies.
Service guarantees Citizenship! Questions Guarantee GITMO.... Amerika Uber Alles!
Won't many of them move on to providing layout and graphics for evil corporations?
OK, check out the trademark at this site.
Some artist decided to stick it to the man, however the man is so dense he hasn't noticed he was being mocked for, what, seventy years now?
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
D-M-C-A... just watch out for the D-M-C-A
Young man, young man, are you listening to me?
Young man, young man, even this parody is illegal.
Yes, when I create a site that parodies people like you who post on slashdot (and the paranoid culture and driveling writing on slashdot), I can use the images from slashdot. I probably wouldn't do this, as you understood that you could be mistaken, but you were modded up to +3 informative while being mistaken.
I must note that this only applies in the US, as parody is protected here, whereas it is not in other countries. See PubLaw for a better description. (I found this by google BTW)
If people can connect to one another even the smallest of voices will grow loud.
--Serial Experiments Lain
He, I used to believe that taking everything into court happened just on TV series ... guess I was WRONG.
Wasn't it in ancient rome where lawyers couldnt receive payment for their services ?
Jorge Canelhas
Are you a Retro Computing Fan ?
http://example.com/
Wal-Mart, so far, hasn't said anything at all about trademarks. The cease and desist sent to my ISP was a DMCA takedown notice, and was about copyrights. Haven't heard anything about trademarks yet. Use of copyrighted material- what they went after me for- is protected as 'fair use' for parody site, in my opinion (and also the opinions of some of the lawyers I have been in contact with).
-bugg
So I will not shop there. Target also sucks so I will not shop there either. It's amazing how I can find what I want off the internet or from a grocery store or smaller shops around town. It is easy not to shop at WalMart so why bitch and scream. Just don't go there.
He wasn't forced to take down his website or change anything in it, as near as I can tell from the article. He was frightened into doing it. From my experience, lawyers for corporations first draft a scary letter telling you what they're going to do if you don't cease and desist. They send this letter regardless of whether they have any legal right to follow through on those threats for the simple reason that people who don't know their rights as well as a lawyer does will often back down. They assume that a lawyer knows the law and won't make threats they can't back up. But why litigate when you can mug some people through the mail?
Back in the day, I put up a website called "The Saint Peterbilt Steel Erection Church of Christ". For reasons that are lost in obscurity. I received a C&D from lawyers representing Paccar, the company that owns Peterbilt Trucks. They claimed images on the page (which I had made myself) were similar to the Peterbilt logo, and they would take legal action to protect their trademark. Well, I panicked. Then I researched and found out what my rights are. Then I took a look at the images, and decided I could make them look nicer and at the same time a little less like the Peterbilt logo. That served both our purposes, so I went ahead and did it. Then I sent them a letter stating that the site was parody and therefore protected, that I'd made a concession in altering the images to make them less similar to the protected trademark, and that was pretty much all they were going to get. I offered to include a verbal disclaimer on the site if they felt there was a possibility people would get confused and think that Paccar Inc. was a sponsor or somehow affiliated with The Saint Peterbilt Steel Erection Church of Christ. Their response was, "No, that's fine." My site was down for all of... not at all.
When a huge corporation promotes itself as having a 'cleaner-than-thou' image, and then muscles down on someone who mocks this image in a tiny inperceptable forum, they often will generate a backlash in the media; the alternative media if not the major outlets.
Then the parody gets recognized far wider than it would have from its initial presentation. This brings recognition to the parodist and simulates discussion on the practices of the corporation and the contrasts between its business practices and its manufactured image. Smart business execs usually know this and will work to avoid publicity amplification. Walmart execs tend to be more mean than savvy.
Perhaps the clearest example of this publicity effect is the Disneyland Orgy which would have disappeared as an urban legend if clueless Disney execs had not have gone batshit when it appeared and mounted a huge effort to destroy it. As you can see, it lives now on the web forever. It still is pretty funny.
I don't see a dump of this on TFE -- anyone have a copy they can insert?
I want a new world. I think this one is broken.
Slashdot "libertarians": Small government for me, big government for those I disagree with. -1, I disagree with you
This is yet another example of the DMCA being abused to silence legitimate free speech. If any more evidence was needed concerning the unintended consequences of this legislation then surely this most recent incident fits the bill. The DMCA has utterly failed in its intended effects, prevention of wholesale copyright infringement in the digital age, and it has manifested many negative side effects. The copyright infringement which is currently taking place on the file sharing networks is nothing that could not be prosecuted under pre-DMCA copyright law and any notion that hackers in Russia, China, and elsewhere give a damn about what US laws say about circumvention devices, or anything else for that matter, is living in la-la-land. Meanwhile the DMCA has been used to muzzle free expression, stifle innovation, intimidate researchers, negate fair use, impede competition, and browbeat technology companies. The DMCA has done nothing to advance the progress of useful arts and sciences in this country while causing tremendous collateral damage to free speech. The other problem with laws such as the DMCA, which is rarely mentioned, is that unjust, poorly written, and unfair laws breed contempt, even among otherwise law abiding citizens, for all laws and that is dangerous because it strikes against the barrier that separates civilized society from utter chaos and anarchy. One can only hope that the DMCA will eventually be struck down by the Supreme Court, but until that day most people will continue to ignore the unjust provisions of this legislation in the same way that they ignored prohibition and every other law which makes criminals out of honest and hard-working everyday Americans.
Another factor is the amount of the work used:
3 - The amount and importance of the portion used in relation to the copyrighted work as a whole;
Fair use does not allow one to completely copy a Web site images and HTML, nor does non-profit or parody use completely exempt one from infringement liabilty.
Man, you open-source fanatics really think people don't have any rights in their IP. Fortunately, the US Constitution and US Copyright law disagree.
Slashdot "libertarians": Small government for me, big government for those I disagree with. -1, I disagree with you
This link to Cornell University's Law School site states (from US Code):
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
So in this case, it was not used commercially and parody is a form of criticism, which is protected as fair use... how was he in violation again?
I see all this arguing going back and forth about whether what Wal-Mart is doing is legal or not. As if the legality of this issue means anything to you as an individual. People have taken action in the past regardless of whether what they were protesting was currently legal (remember segregation?). If you do not like what Wal-Mart is doing, stop shopping there. Use the golden rule.Stop giving them YOUR money to enable Wal-Mart to do things that you do not like. And stop finding excuses to go there and buy more crap than you really do not need in the name of convenience for you. Take a week away from Wal-Mart and encourage others to do the same, thats your strongest power as an individual.