Manipulating Bloggers: Trademark Dilution, Libel and the DMCA
November 2, 2007 2:10 PM
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Philip Smith's summary judgment might be one of the most inspiring cases for bloggers squeezed by dissent corporations, but there's more to the First Amendment
We dodged a bullet this week when a judge favored
Philip Smith over BidZirk
in a civil case of libel, trademark dilution and invasion of privacy.
Unfortunately Smith's case is just one of many typical of the Corporation v. Blogger cases initiated by companies not happy with a particular statement showing up on a website. Smith's is unique in the fact that the story played out to summary judgment.
By far, the largest annoyance I deal with is DMCA takedowns. That's right, the legislation designed to protect starving movie stars from piracy is used against bloggers and journalists with just as much fury.
For those not familiar with the DMCA, a typical takedown occurs in the following manner:
A user posts an MP3 of the new Britney Spears song on his website.
Spears' label emails the user with a DMCA takedown notification, informing him that he has 24 hours to remove the MP3 before that user's service provider is contacted requesting the same.
The user's host or ISP is contacted. If the ISP does not remove the content within 24 hours, the second tier ISP is contacted with the same notification.
This notification keeps moving up the provider chain until it gets to someone who will kowtow to the demands of the DMCA sender.
Virtually every ISP I've ever dealt with in the United States will kowtow to a DMCA takedown within minutes of receiving it. Nevermind that almost no checks and balances exist to determine if the takedown sender is even the copyright holder.
How does this fit in with
, or Philip Smith for that matter? The fact that Smith published a copyrighted image gave BidZirk the authority to initiate a DMCA takedown. Sure, Fair Use comes to mind, but given some of the draconian interpretations of copyright in this country, no service provider is going to risk losing its (literal) backbone to protect the rights of an aspiring blogger.
The rabbit hole extends deeper beyond corporate logos. You might notice that the last roadmap slide published on
occurred almost a year ago, after which AMD sent
a takedown notification claiming all of its slide decks are copyrighted, and subsequently initiated a DMCA takedown on all AMD roadmap articles.
It's a no-win situation for the young writer. Publish or die, as they say, but for God's sake don't publish anything other than complacent text lest you risk litigation or takedown.
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What about net neutrality ?
11/3/2007 9:59:05 AM
You cetainly tackle some very important issues, I would add to this the issue of
net neutrality .
Several federal agencies that might be charged with implementing network neutrality laws have already made their stances clear, though. The FTC has weighed in with its opinion on network neutrality ("No"), and the Department of Justice wrote a less-than-convincing position paper of its own that came to the same conclusion, but in stronger terms ("Hell, no!"). The FCC is still looking into the issue.
Once thought dead, net neutrality roars back to center stage
"If you can find a PS3 anywhere in North America that's been on shelves for more than five minutes, I'll give you 1,200 bucks for it." -- SCEA President Jack Tretton
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