Defending Digital Freedom

 

Last updated: 25 Nov 2017

 

 

We have created content and links to sites which educate on the topic of defending digital freedom. We will continue to add to and polish this content going forward. Please excuse the ongoing draft format.

While some large entities have the resources to threaten and bully those that would expose, criticize, and inform the public about them, we are hosting this resource page for those that have the courage to stand up to the blustering intimidators – or for those that would like to, but don’t know where to start. While this information cannot substitute for the legal advice of a decent human being attorney (DHBA) on such matters, we can do much to educate ourselves on the concepts, terminology, tactics and options involved. Once you understand the processes, lingo, options, and realistic risks, you can make informed decisions about how to proceed. Upon realizing that there is no monster under the bed, no wizard behind the curtain, and nothing scary in the closet, you can base your proactive decisions off of objective information, rather than merely reacting to threats, fear, and intimidation.

 


Common Terms

As SLUCP researches digital freedom, the terms and phrases below are those that we see recurring in cease and desist letters and in organizations’ threatening attempts to stifle criticism. Not being attorneys, we’ll define and overview these terms as we are coming to understand them. Their best definitions and application will be your responsibility. (That’s as close as we care to come to yet another legal disclaimer. What a weird world, right?! One might be excused for wondering if all of the regulatory and legal burdens work to promote justice, or just add red tape, expense, legalese, and obstacle that protect those that can best afford to pay the lawyers.)

 

Intellectual Property Rights – excerpted from businessdictionary.com

“A right that is had by a person or by a company to have exclusive rights to use its own plans, ideas, or other intangible assets without the worry of competition, at least for a specific period of time. These rights can include copyrights, patents, trademarks, and trade secrets. These rights may be enforced by a court via a lawsuit. The reasoning for intellectual property is to encourage innovation without the fear that a competitor will steal the idea and/or take the credit for it.”

Lanham Act – excerpted from uslegal.com

“… provides for a national system of trademark registration and protects the owner of a federally registered mark against the use of similar marks if any confusion results or if the strength of a strong mark is diluted. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising.”

The Electronic Frontier Foundation points out that defenses to trademark infringement claims in domain name use include: fair use (non-commercial purpose, trade name used for identification purposes, disclaimer of non-affiliation…

Trademark

Excerpted from bitlaw.com: “Trademark law governs the use of a device (including a word, phrase, symbol, product shape, or logo) by a manufacturer or merchant to identify its goods and to distinguish those goods from those made or sold by another…. A mark is infringed under U.S. trademark law when another person uses a device (a mark) so as to cause confusion as to the source or sponsorship of the goods or services involved.”

Regarding trademark in criticism websites, from http://www.cybergriping.com/ : Because the portion of the domain name that precedes “sucks.com” is often a trademarked name, sucks.com sites have engendered a rash of lawsuits, in which businesses typically charge site owners with trademark infringement. For years, decisions (court and arbitration) were uneven (and perhaps even capricious), as no lower-court decision was binding on any other jurisdiction. However, the U.S. case of http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=6448 Taubman Company Limited Partnership (plaintiff), v. Webfeats and Henry Mishkoff, (defendants) was the first sucks.com case to reach the level of the US Court of Appeals, which definitively ruled that a non-commercial sucks.com site was purely an expression of free speech, and as such was not subject to trademark law. The decision by that Court has been adopted as precedent by other circuits, and is well on its way to becoming established law throughout the US.”

Excellent Trademark Law overview with case citations from Harvard.

 

Copyright – excerpted from copyright.gov

“A form of protection provided by the laws of the United States for original works of authorship,” including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.”

 

Dilution – Excerpt from bitlaw.org:

“The Federal Trademark Dilution Act of 1995 expanded the scope of rights granted to famous and distinctive trademarks under the Lanham Act…. However, the Act makes clear that certain actions will not be subject to the provisions of the Act. Specifically, the Act states that fair use (such as comparative advertising), noncommercial use (such as noncommercial web pages), and all forms of news reporting and news commentary (which would apparently include reporting and commentary appearing on the Internet) would not constitute dilution under the Act.”

From lumen.org: Dilution is a “… type of infringement of a famous trademark in which the defendant’s use, while not causing a likelihood of confusion, tarnishes the image or blurs the distinctiveness of the plaintiff’s mark.”  [Which might lead one to question the distinction between “tarnishing an image” by supposed misuse of a trademark versus the secondary, public and rightful “tarnishing” of a reputation associated with that image/mark due to lawful, valid, newsworthy, public-benefiting, and potentially embarrassing criticism which is the result of the trademark holder’s failures and misdeeds.]

“Tarnishment” – think of using the trademark name in a tawdry way and for commercial gain, like for a strip club. U Mich Jour Law Reform

 

Uniform Domain Name Dispute Resolution Policy (UDRP)– per lumen.org: “It is an online procedure for resolving complaints made by trademark owners about domain names.” As excerpted from Hurley’s essay (cited in links below):

“In 1999, the Uniform Dispute Resolution Policy (UDRP) was established as a result of the political measures arising from the US Government and the World Intellectual Property Organisation’s (WIPO) international consultation. The UDRP was adopted by ICANN, the Internet Corporation for Assigned Names and Numbers, which is based in California and was established by the U.S. Government although it is an independent international body. The UDRP was aimed directly at regulating online disputes between trade marks and domain names at the international level,….”

From our experience to date: WIPO is an independent third party, empowered by ICANN, which reviews domain name disputes through the UDRP complaint process. A neutral panel examines the evidences submitted by Complainant and the Respondent, then makes a decision as to domain name ownership. These processes appear to have been primarily set up to deal with commercial misuse of a domain name (trying to divert business away from the primary commercial entity) and with cybersquatting (holding a domain name without having a valid interest in it, other than perhaps to sell it for commercial gain and/or profit from the work and reputation of another). There are distinct rules, protocols, precedents and templates to comply with and utilize. You do not have to engage an attorney to help you with this, but it will take hours of reading up to understand the process. Our experience to date with the entity has been impressive in its neutrality, transparency, and clarity of expectations.

***SLUCP has created a response to the UDRP complaint that has been submitted by SLU lawyers against us in their attempt to take the domain name(s) that we have a First Amendment Right to utilize and which we need in order to bring our information to the public. That UDRP response was submitted to WIPO on Oct 9, 2017 and can be read HERE (with Annex 1 and Annex 2). As this is a process that few physicians and/or members of the public are familiar with, we will share what we learn with you through our own efforts at self-education and pro se representation. If you can understand the process, too, then you will be less intimidated when a large entity attempts to stifle your speech, dissent and advocacy.***

Update: 25 Nov 2017: Regarding SLU’s UDRP complaint, the WIPO panel decided to “terminate” the complaint altogether, stating “While it is not altogether clear to the Panel why the Complainant chose to institute parallel proceedings by filing a UDRP complaint in tandem with its federal court lawsuit, it is evident to the Panel that the disputed domain names are tied up in a larger and more complex dispute than the issue of cybersquatting that the UDRP is designed to address.” WIPO case D2017-1759 can be read HERE.

 

Digital Millennium Copyright Act – from wikipedia, with embedded links preserved:

The DMCA is “a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet.[1][2] Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

“The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries.”

 

Bad faith intent to profit – from TraverseLegal.com, links preserved and additional added:

The term defined in the AntiCybersquatting Consumer Protection Act refers to the “use [of] the same or similar domain names or trademarks for their own personal and financial gain.  ‘Bad Faith’ is defined by Wikipedia asdouble mindedness or double heartedness in duplicity, fraud, or deception.  It may involve intentional deceit of others, or self-deception.’

“The summary of cases below briefly outline how the Courts were able to find that the bad faith requirement had been met under the ACPA when individuals and companies did intend to profit from other’s domain names and trademarks in registration and/or use.  Some of these bad faith intentions used by the infringers included:  the use of the domain name in conjunction of a ‘phishing’ scam; no other reason for use of the words or makes other than a desire to capitalize on a strong trademark; intent to profit from poor typing abilities of consumers trying to reach owner’s websites; and a competitor registering the domain name for the express purpose of keeping another corporation from using it, just to name a few.”

 

Fair use –  “In its most general sense, a fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.” Stanford Univ Library

Stanford Univ Library: “Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.” Four factors to consider: “the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market.”

 

Linking and “Deep linking” – “Most often, a website will connect to another in the form of a link (also known as a ‘hypertext’ link), a specially coded word or image that when clicked upon, will take a user to another Web page. A link can take the user to another page within the same site (an ‘internal link’), or to another site altogether (an ‘external link’). You do not need permission for a regular word link to another website’s home page. If there is some concern over the link, most issues can be squared away by having the linked site sign a linking agreement that gives permission for your link. Despite some inconsistencies in early case law, it is generally agreed that deep-linking (a link that bypasses a website’s home page) is not copyright infringement—after all, the author of a novel can’t prevent readers from skipping to the end first if they so desire, so why should a website owner have the right to determine in what order a user can access a website?” – Stanford Univ Libraries

 

Likelihood of confusion – addresses whether a domain name or mark being used is close enough to a protected trademark as to cause confusion among the public as to affiliation or source. This is a very unclear, subjective and arbitrary standard.

An interesting article on the topic. Excerpt: “At a deep level, the likelihood of confusion test rests on an inadequately justified and  normatively incomplete premise. That premise assumes that the ultimate goal of trademark law is to prevent consumer confusion. But this makes no sense. People are often confused in their ordinary lives and the law does not intervene to help. Before a likelihood of confusion can trigger trademark liability, there must be a good reason why the law should prevent confusion when it involves consumers responding to marks. In short, the likelihood of confusion test suffers from a normative gap. It focuses exclusively on the probability of confusion when it should also consider confusion-related harm and the reasons for redressing that harm.” – Bone, RG. “Taking the Confusion out of ‘Likelihood of Confusion,’…” 2012. Northwestern University Law Review. Vol. 106, No. 3, 1307

 

SLAPP – Strategic Lawsuit Against Public Participation. Nice review at pissedconsumer.com, excerpted here:

“When filing such a lawsuit, a plaintiff usually intends to silence criticism through imposing of legal defense costs on a critic. Anti-SLAPP laws (anti-SLAPP statutes) target methods used by SLAPP plaintiffs, thus providing remedies from SLAPP lawsuits. Under most anti-SLAPP statutes, the person sued moves to strike the case as it involves speech on a matter of public concern. Then the burden of proof is shifted to the plaintiff whereas the latter has to show evidence supporting the SLAPP claims. Anti-SLAPP statutes vary from state to state as to what speech they cover and to what extent. The language of these statutes varies as well as to the amount of evidence the plaintiffs have to provide when they have the burden of proof.

“One of the perfect examples of an anti-SLAPP win is the Nevada failed defamation lawsuits expertly defended by Marc J. Randazza with the review posted on Yelp being the center of attention. The court found that the lawsuit was indeed an attempt to silence public discussion on alleged bad business practices (please see the full text of the court’s decision here). The Supreme Court echoed Marc Randazza’s explanation of the importance of such cases in Gertz vs. Robert Welch. The Nevada anti-SLAPP statute has been successfully used several times to defend against various defamation cases.”

SLAPP Fight journal article – Alabama Law Review, 2016. Excerpt: “As a judge deciding one of the first anti-SLAPP cases wrote, perhaps a bit dramatically but with continued validity, the ‘ripple effect’ of forcing targets facing a meritless lawsuit to settle or expend great costs on litigation ‘is enormous. . . . Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.’ Anti-SLAPP statutes combat such threats by allowing ‘early dismissal of meritless [F]irst [A]mendment cases aimed at chilling expression through costly, time-consuming litigation.’”

 


Other Links:

ICANN Uniform Domain Name Dispute Reoslution Policy (UDRP) site.  “Under the policy, most types of trademark-based domain-name disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name.”

 

Harvard’s UDRP process step-by-step guide.

 

Electronic Frontier Foundation – “The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development.” The EFF’s recommendations for gripe site content.

 

WebGripeSites.com – “Chronicling web ‘gripe sites’ and other sites confronted with legal action.” Some of the founder’s recommendations for establishing your own gripe site. The site also links to a mini-documentary of the precedent-setting Taubmansucks.com case regarding accusation of trademark infringement on the internet.

 

PissedConsumer.com – Over 500,000 consumer reviews on over 50,000 companies. “Since 2006, Pissed Consumer has been one of the leading consumer advocacy websites….We believe that companies should communicate with their clients, listen to their concerns and do their best to turn complainants into brand advocates.” The site has a very useful Legal Information resource page regarding online criticism of organizations.

 

Internet Library of Law and Court Decisions, Complaint and Gripe sites page. “…contains court decisions which analyze the legality of consumer complaint web sites which are highly critical of a business entity.”

 

http://www.sgrlaw.com/ttl-articles/858/   – a private law firm’s overview of “trademark trashing” with some useful insights to commercial vs. non-commercial use of domain names.

 

Digital Media Law Project (DMLP.org), specifically the trademark use link. Excerpted:

“The good news is that courts have consistently protected the public’s right to use the trademarks of others in order to engage in criticism, commentary, news reporting and other forms of noncommercial expression. As long as what you’re doing is really commentary, criticism, or reporting (etc.), and not a surreptitious attempt to sell goods or services, or to deceptively attract customers or readers you otherwise would not have had, you should be able to defeat a trademark claim brought against you. The bad news is that the law relating to this intersection of trademark law and free expression is complex and confusing. Neither Congress nor the courts have developed a simple and clear rule that protects your rights to use the trademarks of others for free speech purposes; instead they’ve developed a complex array of defenses to trademark claims that even lawyers find difficult to untangle. This makes it hard for a defendant to get a trademark lawsuit dismissed quickly with little expense, and it leaves bloggers and citizen media creators vulnerable to intimidation through the unscrupulous use of cease-and-desist letters.”

 

An evaluation of the legal issues arising from gripe sites,” an essay by Lorcan Hurley at academia.edu. “This essay seeks to critically evaluate case law arising from gripe sites while also considering effects of these decisions from the perspective of the trademark holders and business owners.” Nice review of the trademark in domain names argument.

 

http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1214&context=law_lawreview

 

FIRE.org – Foundation for Individual Rights in Education. FIRE advocates many types of issues for students. Here, FIRE writes a letter of advocacy to defend a student’s use of Univ of California Santa Barbara’s “UCSB” mark in his domain name: thedarksideofUCSB.

 

Lawyers Realizing That Suing Gripe Sites Might Not Make Much Sense, 06 Apr 2009. techdirt.com. “… these sites are usually perfectly legal. They don’t violate trademark law, and almost every time such a case goes to court the company loses — only adding more attention and legitimacy to the gripe site…. Finally, the target might seek to engage the operator of the gripe site to find out just what his/her problem is and see if it can be rectified. This would be the cleanest, easiest, and cheapest solution.”

 

Cybergriping.com – “Portal to a variety of creative gripe websites containing invaluable information and sometimes rude commentary about famous people, companies, brands and institutions…. This non-commercial website, owned and operated by John Donovan… (the owner of the worlds most successful gripe site), is provided for information purposes only, with multiple links to gripe, sucks and complaint websites….”

 

Public Citizen (citizen.org), Internet Free Speech page link and Free Speech Case Index link – “The rapid growth of the internet and internet technologies provides a renewed opportunity for citizens to have their voices heard on a wide variety of issues, including their government, the corporations that have an increasing role in their economic security, and the unions that represent their labor interests. The internet affords individuals the ability to exchange ideas on these and other issues with an ever-growing world community — an ability that no citizen in any previous society has had…. Public Citizen has developed a program of litigation and other forms of advocacy which protects the rights of these ordinary citizens against those powerful entities who would seek to curtail or suppress the exchange of ideas and criticism that is enabled by this new technology.” Public Citizen’s link to their litigated cases on trademark claims against domain names, and link to the Taubmansucks case, in particular. See Paul Alan Levy’s Legal Perils and Legal Rights of Internet Speakers online guide.

 

Lumen – “The Lumen database collects and analyzes legal complaints and requests for removal of online materials, helping Internet users to know their rights and understand the law. These data enable us to study the prevalence of legal threats and let Internet users see the source of content removals.” See their Protest, Parody and Criticism site.

 

cyberSLAPP.org – “Don’t chill online freedom of speech.”

 

Center for Democracy and Technology (cdt.org) – “CDT is a champion of global online civil liberties and human rights, driving policy outcomes that keep the internet open, innovative, and free.”

 

Electronic Privacy Information Center (epic.org). “EPIC was established in 1994 to focus public attention on emerging privacy and civil liberties issues and to protect privacy, freedom of expression, and democratic values in the information age.” Free speech page.

 

American Civil Liberties Union (ACLU.org). “Because freedom can’t protect itself.” ACLU amicus brief in Taubman case.

 

Bitlaw.com – “A free legal resource focusing on intellectual property.”

 

http://www.danheller.com/model-release-copyrights.html – Dan Heller photography, review of trademark issues regarding pictures of buildings

 

https://www.copyright.gov/ – US Copyright Office

 

https://www.uspto.gov/ – US Patent and Trademark Office

 

Protecting Nominative Fair Use,… Univ of Michigan Journal of Law Reform

 

 


Our School. Our Future. Our Responsibility.

 

SLUCP: Driving education, awareness, and positive change towards systemic improvement for St. Louis University med school residents, faculty, and staff.

to Top of Page

To Home Page

*Disclaimer: We are in no way associated with or supported by any educational, administrative, accreditation, licensing or oversight body mentioned in these pages. In fact, we're certain they all wish we'd just go away. 

*Legal: Institutional images and names are used non-commercially and under concepts of fair use, public domain, sharing of newsworthy and public-benefiting criticism, and with an unlikelihood of confusion as to trademark usage. Legal correspondence will be gladly shared broadly here and on social media.