FedEx Cracks Down on Box Furniture, Citing DMCA

nospmiS remoH writes "Wired is running an article about a guy with no money making furniture out of FedEx boxes. If that weren't strange enough, FedEx is going after him, legally citing the DMCA. Yes, the DMCA. Apparently they are not upset about the furniture itself but rather this site that he put up with pictures of his creations (pretty good work really). My favorite quote from the article, '...Avila clearly intended to operate a business from his website because he used the .com domain suffix, the "commercial level domain," rather than .net.' You just can't make this stuff up."

Comments

Free Boxes

[dthrall]

I explored both his site and the fedex site... seems to get the boxes from fedex, you need an account... the good new? the USPS will send you free shipping supplies :)

Re:Free Boxes

[dthrall]

Here's that USPS URL:

http://shop.usps.com/cgi-bin/vsbv/postal_store_non _ssl/home.jsp

Re:Free Boxes

[Desert Raven]

Don't play this game with the USPS. Unlike FedEx, the USPS has very strict terms of use for their materials, printed clearly on each box/envelope. And, since they are a branch of the federal government, it's a federal offense to violate those terms.

Re:Free Boxes

[Desert Raven]

From http://www.usps.com/strategicplanning/cs04/

In 1976 the Postal Service filed its first annual comprehensive statement to comply with an amendment to the 1970 Postal Reorganization Act. The amendment, now codified as Title 39, United States Code (USC), Section 2401 (e), required that a comprehensive statement accompany the annual Postal Service budget submission to Congress. The amendment further required the Postal Service to explain and address 1) the plans, policies, and procedures designed to comply with the statutory mission of the Postal Service; 2) general postal operations, including data on service standards, mail volume, productivity, trends in postal operations, and analyses of the impact of internal and external factors upon the Postal Service; 3) financial information relating to expenditures and obligations incurred; and 4) other matters necessary to ensure that Congress is "fully and currently consulted and informed on postal operations."

From Wikipedia:
"The United States Postal Service (USPS) is the United States government-owned corporation...".

So maybe they are technically no longer a branch of the govt, but they certainly are wholly owned by it, which sounds to me like they are still run by the government. You'll also remember that the USPS can't raise postal rates without congressional approval either.

And from a Priority Mail box I have:

"This packaging is the property of the U.S. Postal Service and is provided solely for use in sending Priority Mail. Misuse may be a violation of Federal law."

Betcha won't find that on a private corporation's packages...

Re:Free Boxes

[EvilTwinSkippy]

...and congress has specific interest in their continued survival

US Constitution, Article 1, Section 8:

Clause 7: To establish Post Offices and post Roads;

Yup, it's in there.

Re:Free Boxes

[Alex P Keaton in da]

Okay- I am going to admit to a funny error. I sold about 40 car repair manuals that I got for free on Ebay about a year ago. They fit perfectly in priority mail boxes and weighed under a lb so it was 3.85 to ship them anywhere in the country. Plus, with priority mail, you print the label on you computer (and pay), tape it on the box with the priority tape the USPS gives you free, and throw it on your front porch. You don't need to call for a pickup as the Mailman is there 6 days a week. (I live in a nice area, so there isn't an issue of theft from the porch, and it isn't visible from the street).
So I go online on usps.com and order 40 of the boxes I thought I needed. Except, of course, I am an idiot, so I ended up ordering 40 box of 10, thus 400 boxes. I felt like an ass, not so much because of the free boxes (I have actually used well over half of them so far for mailing) but because I my postman is a cool guy and the thought of him with 40 boxes of boxes....
A good reason to have anything bought on Ebay etc shipped by USPS- if it turns out to be counterfit, call the US Postal Inspection Service. They don't take kindly to misuse of the mail. UPS and FedEx don't have sworn federal agents with guns to investigate fake products sent theough their delivery channels....

Re:Free Boxes

[Anonymous Coward]

He's not selling anything. Get your facts straight.

Re:Free Boxes

[Aeiri]

but he is making a profit on another company w/o their permission - and they are losing money. That is NOT cool.

http://www.fedexfurniture.com/

Where on that site do you see him selling these things?

He accepts donations, but a donation is just that, A DONATION, not profit.

Free Boxes from UPS & FedEx

[Anonymous Coward]

I love their generosity.

UPS, especicially. You can get huge "25KG" boxes intended for international shipping. I have UPS drop these on my doorstep every time I move, all for free.

Re:Free Boxes from UPS & FedEx

[sammy baby]

Screw that - head to the local package store or beverage place. They have tons of boxes used to ship beer, wine, and spirits, and they often wind up just dumping them. They're happy to give them away.

Re:Free Boxes from UPS & FedEx

[cl0secall]

According to his blog, his original intention was to use the boxes for shipping, and continued to be a use for the boxes even after being assembled into furniture. To wit, "Since I frequently ship items, I ordered about 300 boxes of various sizes. I figured this would save me time, instead of walking down to the store whenever I needed to ship something, I could do it comfortably from home. Later that month I saw a picture from a friend of a desk that was made of boxes. My friend, Tom, was in a similar situation in Seattle, and it gave me some inspiration. I decided to build some furniture with some of the boxes I had lying around. I figured, if I needed to ship something, I could pull it off a piece of my furniture and mail it off."

That being said, there are numerous free sources of boxes. Just ask any local retail shop what they do with their shipment boxes. At my old store we got several boxes each week which were recycled, unless I took them.

Re:Trademark yes, copyright no

[Anonymous Coward]

Tademark only applies if he is intending to sell products or pretend that he is FedEX (I saw the site, it is obviously a parody and labeled as such), as in the case of trademark dilution.

He is doing neither, so FedEX really is just strongarming this guy because he dared to abuse their free boxes.

Full mirror here

[winkydink]

Weird... very weird

Mirror.

I bet wired.com can handle the traffic

[Anonymous Coward]

Here are the pics

http://wired.com/news/culture/0,1284,68492,00.html ?tw=wn_tophead_2

Re:It does sound silly, but...

[necro2607]

However, none of that even remotely justifies blatant abuse of the legal system...

Yeah, so they don't like it... they probably don't like other people using competitors like UPS or Purolator, but that's part of doing business... and it's no grounds for legal action at all.

Re:Even better!

[Kiaser Wilhelm II]

I want my possessions to come to my apartment intact, not broken in 1000 pieces and the edges of the box smashed in.

Seriously, UPS has the worst track record in package handling. One time I was looking for a job during college.. I went to UPS and they took us on a tour of their package handling facilities. You will never want to be a customer of UPS after you tour their facilities. They don't care about your package. The people who work there have to work their "packages per hour" number.. if they get too low, they get fired, so quality/careful handling doesn't simply exist at UPS.

Re:Even better!

[Anonymous Coward]

Having just quit UPS last week, I can second Kiaser's observations. When you have three trucks to load with about 200-300 packages each, your primary concern is getting those boxes off the belt and in their right place on the truck as quickly as possible. If you spent your time trying to be delicate about it, you'd be up to your ass in packages. Because for everyone one you take off, there's three or four to take its place.

And at 9.50/hour in 95 degree heat inside the warehouse, the condition of your package is the least of my concerns.

For those considering a career at UPS: please first consider dealing smack or pimping out underaged runaways. It's a good deal more fulfilling.

Re:It's all about shutting down the site.

[ChaoticLimbs]

The main problem with that, of course, is that it's illegal to sue somebody to shut them up.
It's called a SLAPP lawsuit. A Strategic Lawsuit Against Public Participation.
Basically, using the courts to shut people up, intimidate them or harass them, without needing to win, or suing somebody for revenge after they divulged something you didn't want divulged, is a SLAPP.
There are penalties for SLAPP lawsuits.
This is almost certainly one. What they would be suing for if they were serious, is the use of the URL and trade name for FEDEXFURNITURE dot com.
Especially since the guy colored FedEx the red and blue colors like the FedEx logo.
Basically he could have said Shipping Container furniture all he wanted, but by naming his site fedexfurniture.com he is using their name.
However, if FedEx hasn't trademarked that name for use in the furniture industry, I'd say they're SOL.
Well, except that he is stealing his materials from their company.

Re:This is why FedEx filed the lawsuit

[Twanfox]

Here's the thing. You cannot sue someone under the DMCA unless they're violating DIGITAL copyrights, most notably circumvention of a device to protect against illegal copying (or legal copying, frankly. Another debate for later).

So, what legal leg does FedEx hope to stand on? They offered to send these boxes to people for free. Yes, they were intended for shipping, but there was no agreement made that says "You must ship with us with these supplies." End result? FedEx is going to lose this one. They offered free supplies, and someone took'm.

Re:Even better!

[Adult film producer]

"I want my possessions to come to my apartment intact, not broken in 1000 pieces and the edges of the box smashed in. Seriously, UPS has the worst track record in package handling."

Something like this eh ?

http://www.spikedhumor.com/Article.aspx?id=767

Your thinking is wrong

[RalphLeon]

I saw this quite a while ago on treehugger.com check out http://www.treehugger.com/files/2005/06/fedex_furn iture.php

This guy did not "take new" fedex boxes from fedex. He used previously discarded boxes. On other-words ultra-minimal impact on the environment.

For more info: http://freegan.info/

Two Weeks ago?

[kwieland in stl]

Written on the blog, dated July 22nd.

"Over two weeks ago, FedEx improperly used the DMCA notice and take-down provisions to get the website at www.fedexfurniture.com taken offline. The company claimed trademark infringement and conversion, neither of which allow it to take advantage of the powerful remedy provided under the DMCA."... http://cyberlaw.stanford.edu/

Re:This is why FedEx filed the lawsuit

[monkeydo]

Here's the thing. You cannot sue someone under the DMCA unless they're violating DIGITAL copyrights, most notably circumvention of a device to protect against illegal copying (or legal copying, frankly. Another debate for later).

Here's the thing. You're wrong. circumvention of copyprotection devices is but one section of the DMCA. There are others. Try reading it sometime. You might be surprised at how little you learn from /.

Re:The catch? Those aren't your USPS boxes!

[Chainsaw76]

Actualy, he says he ordered 300 boxes, because he ships frequently. And that his furniture was built from those boxes, and that if he needed a box for shipping he would take one out of his furniture to do it.

-Jason

Grow up

[frovingslosh]

And, since they are a branch of the federal government, it's a federal offense to violate those terms.

I'm not even going to bother with the fact that the USPS has been spun off and independent for years, but lets go right to the federal offense part. I'm not quite sure what you think you mean by "offense", but if you mean federal crime, that is dead wrong. Congress passes the laws that spell out federal crimes, some low level clerk writing stuff on boxes does not define laws. Maybe there is such an insane law, but without actual reference to it I'll assume there is not and live without fear of discarding a USPS shipping envelope unused.

Re:Oooh, they wrote a *Letter*?

[BFaucet]

One thing you miss in your post is the cost associated with defending yourself against a giant company. Sure if you win you'll probably get your costs back, but high payed lawyers such as FedEx could afford would probably be able to keep a case going for a few years... Reguardless of how ridiculous the accusations.

Re:Trademark yes, copyright no

[hey!]

I should copyright a sentence fragment on my site, and then sue everybody who says it for illegally redistributing my original work.

Well, you could, if you could show that that sentence was sufficiently original and creative, but it ain't easy. For example IIRC, story titles are seldom held to be copyrightable. I could write a short story called, "The Geek", and if you later wrote a different story with the same title, I wouldn't necessarily be able to prove you copied me. However, in rare instances you can; IIRC Harlan Ellison successfully sued over the title to his story "I Have No Mouth But I Must Scream." So, maybe I'd better call that story "On Improving the Reproductive Prospects of a Socially Inept Geek".

Art, of course, is copyrightable. Package designs are an interesting case, because they include both elements of art and trade mark. Yet , copyright is a strange concept to be using here. I guess they're saying by taking photos of the their boxes, this guy is illegally copying, as if he went to a museum and took a picture of an Ansel Adams photo and started selling it. But if there's any justice at all, somebody will take this case pro bono out of sheer cussedness and get this argument thrashed and jeered out of court as it roundly deserves to be. People don't buy Fed Ex boses for the wonderful art. The art has no value to them, but it has great value to Fed Ex -- as a trade mark. That's after all what they're upset about (stupidly if you ask me -- I'd be sending this guy free boxes!)

Copyright is exactly that: the right to copy. It in general does not give an author power over how somebody else uses his work, unless he is able to sell it as part of a license deal. And that's harder than it looks. I've actually seen late 19th century books with licenses printed inside the front covers that forbade reselling or lending. These licenses were deservedly ignored, and ultimately proved legally useless.

Trademark on the other hand, is in some ways much more powerful. The rights you have over your trademark include precluding uses that harm the trademark's value. That's exactly what the concern is here, and they should come out and say it and use the right law. Its a terrible disservice to societ to use laws creatively this way.

This is yet another example of how the DMCA is a terrible ,stupid law that confuses ordinary people about what they are allowed and not allowed to do. As an architect's approach ot problems is likely to involve blueprints and a banker's financial instruments, so I suppose a legislator feels the impulse to create laws. However they'd do well to remember this Chinese proverb: many laws make many criminals.

TLD misuse

[the0ther]

If FedEx wants to start bitching about the way people use a TLD to denote whether or not they're a commercial entity, check out http://www.orangebowl.org/. If the Orange Bowl is a non-commercial event somebody should probably get back those "gift" SUVs the colleges are giving out to their star ball-players.

Re:TLD misuse

[Anonymous Coward]

More on topic :

http://www.fedex.org/

Talk about the pot calling the . . .

I Call Shenanigans.

[Anonymous Coward]

The first time you order a shipment of boxes from the USPS, they make you sign something saying that you acknowledge...that those supplies are indeed only for the purpose of sending stuff by means of USPS.

That simply isn't true. The US Postal Service has offered free boxes to eBay sellers for years, and I have ordered them regularly. There is no such agreement.

The only catch is that the boxes have Priority Mail designs on their exterior. This means that, if you ship those boxes via the Postal Service, you have to pay the Priority Mail rate -- as opposed to cheaper rates like First Class (depending on weight) or Media Mail. However, you can easily evade this design with a few moments' patience and some duct tape: Simply tape up the box so that no design is visible.

Having said all that, I have ordered these boxes specifically to pack items when moving out of an apartment. There isn't any agreement or contract such as the parent describes.

Re:I Call Shenanigans.

[hesiod]

> you can easily evade this design with a few moments' patience and some duct tape: Simply tape up the box so that no design is visible.

Or if you get the ones that you have to fold/assemble yourself, just make them inside-out, giving you a nice plain brown or white box.

Re:while tenuous

[bartjan]

The way it originally was is that .com meant computer, .net network and .org organization. I have no idea who started this silly idea of using .com for commercial entities.

Re:Even better!

[killermookie]

Whoever modded this up needs should have their points taken away.

I have mod points but instead of modding you down I'd rather say this:

I worked at UPS while going to collage and all I can say is that it was the best part-time job I ever had. I worked there for over 4 years and was making $12.50 an hour by the time I left.

In addition to having a great pay, I also received full-time benefits! Plus if I wanted to continue my job at UPS there was the option to become a driver. Yes, it's hard manual labor but pay is great.

I worked in the Henrietta, NY warehouse where the summers are 95% humidity, 90 degrees and the winters get to 0 degrees.

So suck it up! It's manual labor! If you're too much of a wuss to handle hard labor then stay with a desk job.

BTW, I left UPS to start a career in IT in the Bay Area and that's where I am today.

Thank you UPS for giving my the cash to move out here!

Re:This is why FedEx filed the lawsuit

[LarsG]

most notably circumvention

Anticircumvention is only a part of the DMCA. FedEx tried to invoke 'notice and takedown' (see title II in the linked article).

Re:It's all about shutting down the site.

[NitroWolf]

Yeah, I'll stop using FedEx as well...

However, instead of UPS, which charges and arm and a leg to ship, try using DHL (Formerly known as Airborne Express) - they are usually at least a day or two faster than UPS and 1/3 to 1/2 the cost.

Plus they are a cool yellow and red, not poop brown.

Re: Commercial = .net

[rsmeds]

Where did you get that idea from?

According to RFC 920 -- Domain Requirements (1984):

"The initial top level domain names are:
...
COM = Commercial, any commercial related domains meeting the second level requirements..."

According to RFC1591 -- Domain Name System Structure and Delegation (1994) :

"COM - This domain is intended for commercial entities, that is companies..."

Also, regarding .net domains:

"NET - This domain is intended to hold only the computers of network providers..."

Why "intellectual property" conflates.

[jbn-o]

From the article:

"DMCA only applies to copyrighted works, and they [FedEx] were basically making trademark-related claims, so it was completely outrageous," said Lauren Gelman, associate director of the Stanford center.

A good time to remind us of why RMS insists on having different opinions about the public policy questions raised by disparate laws (including trademark, copyright, and patent law) with different histories and purposes; the alternative he rejects is lumping these laws together into "intellectual property".

What a great response by Granick!

[neoThoth]

The PDF is a little confusing because it's posted upside down but it's a great read.
I will briefly paraphrase for those too lazy to read this themselves..
Grannick's response is:
1) There isn't a chance in hell someone would confuse the fedexfurniture site for a multinational shipping organization
2) Some guy sold artistic expression of Barbie doing naughty things once
2a) not only did a court find this OK but the company (Mattel) that tried to sue him ended up paying for all his attorneys fees (HINT: Fedex will pay lots of money to Avila if you pursue this)
3) The DMCA reference is Bullshit!
4) He complied with all your websites terms and conditions
5) BTW we put his website on Stanford's servers. Care to sue us both?

In just a page and a half she shredded their case and taunted them to try and sue one of the top legal institutions in the country. But it's all done so subtley.
I have a feeling a NEW terms and conditions will get posted to Fedex in the very near future. Just a gut feeling.

MOD PARENT DOWN

[grouse]

This is just wrong. Why on earth did people mod it up? I guess that's Slashdot for you.

RFC 920, back in 1984, says that "COM = Commercial, any commercial related domains meeting the second level requirements."