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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RE: AMD shot themselves in the foot.
11/5/2007 9:57:03 AM
I can understand AMD's want to keep those particular slides off the net. What'll happen is that people will see future price breaks and stop buying
. This impacts retailers and distributors which impacts AMD. Retailers and distributors are left with many processors they paid too much for and then return them. It goes up the chain, back to AMD, and AMD now has to sell them at the lower prices, or issue credits to those customers.
I don't agree with using the DMCA to take them down, but I do understand why AMD would have wanted them down.
"The whole principle [of censorship] is wrong. It's like demanding that grown men live on skim milk because the baby can't have steak." -- Robert Heinlein
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