We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here). (For a prior column, click here) This trend is being fueled not only by powerful lobbyists who sometimes seem like they control both Congress and the White House but law firms that have made this a virtual cottage industry. There are a large number of law firms on retainer to bring these actions and artists and companies that do little to limit them. The latest example was brought to light by the good people at Techdirt which posted a Digital Millennium Copyright Act (DMCA) letter to Reddit informing them that they had violated copyright laws with a posting of an individual known as heisenberg69 with this image satirizing Office Depot.
Techdirt points out that the image is actually not a swastika but a sauwastika, the Buddhist symbol for peace. However, it quickly gets to business and points out that the letter from Office Depot’s Corporate Counsel Jared Namm incorrectly says that the posting of his image “violates the copyrights and trademarks of Office Depot.” There is no explanation of why it violates copyright. However, to the extent that this is a trademark violation, DMCA would not apply. Moreover, since this is not a “use in commerce” it is difficult to see a trademark violation in a use for satire. There is also an equally meritless terms of service claim.
Reddit is hopefully able to recognize meritless claims as a leading site — and one that is often referenced on this blog. However, one can imagine an average citizen receiving such a letter. We have previously discussed how factory law firms not only routinely threaten average citizens for cash settlements but attack those who try to educate the public. Namm does not reveal the dubious basis of the claims or explain how copyright laws could apply. He does however, swear “under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Namm’s bio says that he is Corporate Counsel at Office Depot. He lists degrees from University of Miami – Frost School of Music; University of Miami School of Law; and Tulane University – A.B. Freeman School of Business. He describes himself as an “accomplished legal counsel with broad-based transactional, litigation, intellectual property, media, and administrative experience . . . Known for in-depth and comprehensive legal expertise, skillful handling of corporate, commercial, and media-related transactions, strong business acumen, superior communication and interpersonal skills, and results-driven leadership and management ability. Excels at combining strategic business thinking with legal expertise to contribute to the overall success of the business.”
What would be interesting is to learn who came up with the idea of sending the threatening letter over a minor posting on Reddit. Whoever it was has now succeeded in generating a thousand times more attention to the posting than it generated originally on Reddit. It has also created an image of Office Depot as a thuggish corporation threatening exercises of free speech. That is quite an accomplishment for a letter notifying Reddit of a meritless claim.
Source: Techdirt
To your list of common words and phrases that have been claimed as proprietary, I would add that this over-reach now includes even numbers:
http://en.wikipedia.org/wiki/Illegal_prime
Has anyone heard his side of the story yet? I’m holding off on submitting to Florida Bar until I can devote some time to researching/investigating. Craziness. If we start holding the signatory as where the buck stops… less idiots will sign these things.
Hotsie, tot sie, I smell a Nazi.
–Curley, Three Stooges
By the way, this wordpress thing is stupid. It corrects the word tot sie. I have to dis combobulate it or however ya spull it to get the tot up front of the sie instead of WordPress printing it as tootsie. Curley would not say tootsie when he means tot sie.
Can you use anti-SLAPP protections in cases like these?
Looks like Office Depot has invoked the Barbara Streisand effect.
I’m tired of this. He holds himself out publicly on linkedin as “Accomplished legal counsel with … intellectual property … experience [with] Specialties: … Intellectual Property, Copyrights, Trademarks…” 1) That’s unethical in most states, right? 2) any 1L with even a modicum of IP can tell Trademark from Copyright; 3) any 1L with IP knows about: a)uncopyrightability of small words or phrases; nominative trademark fair use; 1st amendment parody use. He signed the DMCA takedown notice to interrupt our collective first amendment speech (and corollary reading) rights; he failed to do any due diligence and investigation; he unethically held himself out as having specialized training in complex/esoteric fields where he clearly has NO understanding; and/or he filed this for harassment, unfair purposes, with complete frivolty even acknowledging “under penalty of perjury” that this was proper and bonafide. I’m filing a complaint under the Florida Bar website. He should know better, and examples must be made to deter future idiots from the same course of action.
About ten or twelve years ago, there was a web site called “U-Hell,” where people who had complaints about the U-Haul truck and trailer rental company could complain. I found it when I wanted to grumble about a nightmarish U-Haul truck rental. Of course, there was no way the company was going to let my nastygram through moderation and post it, so I posted on the U-Hell website. IIRC, the U-Hell site did not have a logo even remotely resembling the U-Haul copyrighted images, and every time U-Haul was mentioned in the header it clearly had the trademark icon beside the company name. He also had the usual disclaimer, but it made no difference. U-Haul does not tolerate public criticism if they can help it.
U-Haul went after the guy running the U-Hell website, and he had to remove it and all its contents. When I talked with him, he pointed out that he was just an ordinary guy trying to be helpful to people who had complaints or had been ripped off. He was not doing it commercially and didn’t have the money to take on a huge company with deep pockets. Reddit will not have the same problem. They can afford lawyers.
A fair comment might be to impose a Swastika over the Turley dog photo of Luna. Or of Turley. Or folks of a different persuasion might impose a hammer and sickle. When others call my dog a Nazi or a Commie I will take offense. In fact if they did it in our neck of the woods they would get a yard full of dog poop from the dogpac. To heck with law courts. Poop on em.
Someone once said any publicity is still publicity…..
It does not infringe trademark because it is nominative fair use. See New Kids on the Block v. New America Pub., Inc. 971 F. 2d 302 (9th Cir. 1992). No one is appropriating Office Depot’s trademark for their own use or seeking to confuse the consumer about the source of a product. Instead, Reddit is making a comment about Office Depot itself.
Office Depot may assert that Reddt is diluting its trademark by associating it with something distasteful. Again, there is a fair-comment exception to trademark dilution.