Copyrighting Freedom of Expression™

By Kembrew McLeod, In These Times. Posted January 27, 2003.

The power of corporations to censor was greatly expanded by the passage in 1998 of the Digital Millennium Copyright Act, which was written by and for the lobbies that paid to push it through Congress -- the software, entertainment, pharmaceutical and other intellectual property industries.

Most significantly, the DMCA severely curtails the “fair use” of copyrighted goods. The fair use statute was written into the 1976 Copyright Act to prevent overzealous copyright owners from controlling all uses of their goods. Fair use allows artists, writers and scholars to use fragments of copyrighted works without permission for the purposes of education, criticism and parody, among other things. The problem is that the DMCA, passed by a Republican Congress and signed into law by President Clinton, places the judicial powers of deciding what is fair use and what is not into the hands of copyright and trademark owners. They, of course, are not very liberal in their interpretations of how their intellectual property is used by others. For most intellectual property-owning corporations, any use is stealing.

The DMCA gives corporations the power to essentially purge from the Internet what they deem to be copyright and trademark violations, usually by forcing Internet service providers to remove offending Web sites. The act encourages such behavior because the law states that ISPs and Web host companies can avoid liability only if they comply with copyright owners’ demands to quickly remove so-called infringing materials. Search engines are also liable under the law for simply pointing users to Web sites, though they too can avoid lawsuits if they cave to the demands of overzealous copyright owners by removing certain search results. Intellectual property owners can simply make your voice disappear if they do not like what you have to say about them -- whether you are liberal, conservative or neither. This is something that was much more difficult in a non-digital world.

This recently happened to a parody Web site that targeted Dow Chemical and the infamous chemical spill that killed an estimated 20,000 people in Bhopal, India. In 1984, a pesticide plant in Bhopal owned by Union Carbide, now part of Dow, sprung a leak and killed 5,000 residents, after which the plant was abandoned without a cleanup, gradually claiming an additional 15,000 lives since. Shortly after the parody Web site went online in 2002, lawyers for Dow sent the site’s ISP, called The Thing, a cease and desist letter, claiming that the site was in violation of the DMCA because, “The Web site displays numerous trademarks, images, texts and designs taken directly from Dow’s Web site.”

Soon after, the ISP itself -- also a provider for other artistic projects, including Artforum magazine -- was informed that its high-speed connection provider, Verio Inc., would terminate its service. Now the parody site cannot find an ISP in the United States that will host it.

Another way content can be policed online is the way domain name disputes are arbitrated in cases of so-called cyber-squatting -- when a domain name that incorporates a trademark is registered by someone other than the mark’s owner. In 2001, professor Michael Geist of the University of Ottawa conducted two studies that demonstrate that the arbitration process is unfairly balanced in favor of corporate trademark owners. Two organizations, the National Arbitration Forum (NAF) and the World Intellectual Property Organization (WIPO), decide the lion’s share of domain disputes -- 94 percent.

Why do these organizations dominate the process? Trademark owners, the complainants, can choose where a case is heard, and Geist’s two studies demonstrate that NAF and WIPO actively choose judges who favor complainants. It’s no surprise that WIPO’s arbitration panel has removed custody of hundreds of domain names and turned them over to corporate trademark owners. The WIPO doesn’t just rule against someone who is squatting on McDonalds.com or VivendiUniversal.com, but anyone who registers an obviously satirical variation of that trademark, such as VivendiUniversalSucks.com.

Indeed, on Nov. 7, 2001, the panel ruled that very domain name may cause confusion among the public, and pulled the plug on a group of Vivendi Universal critics. In one of the more surreal examples of intellectual property jurisprudence, WIPO argued that “certain members of the public in general and ‘Internauts’ in particular, not being English speakers and/or aware of the meaning of the word ‘sucks’ in the Internet world, would be likely to understand ‘sucks’ as a banal and obscure addition to the reasonably well-known mark VIVENDI UNIVERSAL and that, accordingly, refers to services provided by the Complainant.”

It’s important to understand that trademark law has no formally written “fair use” statute, and this gives much less room for Freedom of Expression™ on the Internet, and in the offline world as well. Federal law protects trademarks from being portrayed in an “unwholesome or unsavory context,” which allows courts to suppress uses of famous cultural icons that are unauthorized, even when there is no reasonable possibility of confusion.

For instance, in 1977 an environmental group used a caricature of the Reddy Kilowatt trademark in literature that was critical of the electric utility industry, and the company responded by filing an injunction for the unauthorized use of their mark. This injunction was upheld by the U.S. District Court for the District of Columbia. The court ruled that, essentially, you cannot use a trademarked property to express yourself -- it constitutes a type of trespassing. In Canada, the Manitoba Court of Appeal similarly ruled that striking Safeway workers could not appropriate the Safeway trademark in their union literature. The Court ruled that “there is no right under the guise of free speech to take or use what does not belong to [you].”

If you were wondering why I included the ™ symbol in the paragraph above, it’s because I own the federally registered trademark, Freedom of Expression™ (No. 2,127,381). Apparently, the U.S. Patent and Trademark Office did not find the idea of someone controlling this phrase morally, socially and politically unsettling, and it granted me ownership of the mark in 1998. If, for instance, the ACLU wanted to publish a magazine titled Freedom of Expression™, it would have to seek my permission and pay royalties -- and if I was in a bad mood, or didn’t agree with the ACLU’s agenda, I could sue them for the unauthorized use of the phrase.

Don’t worry … I wouldn’t do anything like that. I’m not Disney. But I am considering pursuing legal action against AT&T for their use of Freedom of Expression™ in a recent ad campaign.

Kembrew McLeod is the author of Owning Culture: Authorship, Ownership and Intellectual Property Law.

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