Here's how the email
battle with my host played out [Note: I have snipped
out names and email addresses where necessary]...
--------------------------------------------
RackShack
wrote:
It
has come to our attention that your server located
at 64.246.30.10 is in violation of our AUP/TOS by
way of the following URL(S): orsm.net
The URL(S) stated above
is in violation by way of we have recieved notification
of you having the mastercard paradies, you have until
18:00 CDT to remove the content or we will have no
choice but to close your account, and if it shows
up again after you remove it your account will be
closed..
We must demand that you
take prompt action in the removal of the material
in question or we will be forced to take further action.
The time is now August 28, 2002, 4:59 pm.
--------------------------------------------
When I receievd
that email I was fast asleep - there's a 12 hour time
difference between me and where my host is located.
I woke up, checked my email and replied with the following;
well after the deadline had passed...
Orsm
wrote:
Dear Sirs,
The word which is being use on Orsm.net is 'PRYCLESS'.
MasterCard does not hold any copyrights or trademarks
over the use of this word.
The Orsm.net website is a parody website and is doing
absolutely nothing wrong. There are a number of legal
precedents supporting me in this matter. MasterCard
is simply using scare tactics in order to protect
something which is not theirs in the first place.
Please do not remove the server at 64.246.30.10 from
the RackShack network.
--------------------------------------------
When they came online the next morning I get this...
RackShack
wrote:
Sirs,
This is not about the word
"priceless" its about the teme of the ads,
which Mastercard claims a copyright or trademark over.
We will not fight a legal battle with Mastercard over
the content on yoru server. If the content is not
removed within the next few we will remove your server
from our network PERMANENTLY This is your final warning.
Regards
Chris
--------------------------------------------
In my opinion
the above email is a bad joke. Not only do I threatened
with them pulling my server but they don't even offer
me a chance to defend myself. I then replied with
the following to which I received no reply...
Orsm
wrote:
Dear
Chris,
Thankyou for the poorly
written email. The _legal_ material in question has
been removed as per your request. Allow me to take
this oppurtunity to congratulate RackShack on their
attitude towards censorsing ones right to freedom
of speech.
At the same time
as my emails were going back and forward, my lawyer
[who I won't name as I doubt he would be appreciative]
was engaged in a similar war of words with my host...
Orsm.net
Legal wrote:
Dear Sirs,
I am <name removed: Orsm's>
attorney in Australia.
I refer to your email as set
out at the bottom of this email.
I write to you in relation to my
client's website, orsm.net, the mastercard "parodies"
and the hosting by my client of such material on his
website.
The priceless pictures are a parody
in both the legal and lay sense of the word. Parody
is a legal defence to the unauthorised use of another's
trademark. The rights of a trademark owner extend
only to prevent injurious unauthorized commercial
uses of the mark by another, and in the United States
such rights do not entitle the owner to quash an unauthorized
use of the mark by one who is communicating ideas
or expressing points of view. This principle of free
speech, as it were, is codified in the Copyright Act
(USA). Section 107 provides that "the fair use
of a copyrighted work for purposes such as criticism
[or] comment is not an infringement.
Out of interest, my client's case
is similar to that of the Ralph Nader type case. Mr
Nader's case is one of the most high profile parody
cases in US history. The case also involved MasterCard.
Ralph Nader ran a series of election advertisements.
The advertisements showed clips of presidential candidates
George W. Bush and Al Gore glad-handing supporters,
while the announcer lists some of the costs of presidential
politics: $1,000-a-plate fundraisers and promises
to special interest groups of more than $10 billion.
The ad then shifts to grainy images of a young Ralph
Nader pouring through documents. The part of the advertisement
in contention was when the announcer says: "Finding
out the truth: priceless. There are some things money
can't buy. Without Ralph Nader in the presidential
debates the truth will come in last."
MasterCard sued the Nader campaign,
their case being that the abovementioned advertisement
infringes upon the company's trademark and copyrighted
ad campaign. MasterCard, of course, lost.
The test, in a nutshell, is that
parody must be clever enough to avoid dilution of
"famous" trademarks. The priceless pictures,
hosted by thousands of internet sites, certainly pass
this test.
Further, the priceless parodies don't
mention the name mastercard, and now, the use of the
word "Prycless" (as opposed to "Priceless")
further distances the parodies from Mastercard.
As comfort to you, my client
is prepared to provide you with an indemnity in the
form attached.
I hope this is sufficient
to allow my client to continue hosting the orsm.net
website with yourselves.
Regards,
<name removed: Orsm
Legal>
--------------------------------------------
RackShack
wrote:
Sir,
First of all, we are not asking Mr. <name
removed: Orsm>
to remove his entire site, we only require that he
remove the content in question. We have been placed
on notice by Mastercard that if we allow the content
to remain on our network we will be made a party to
any action they may take on this issue. I am not saying
that their position is correct, what we are saying
is that we will NOT leave ourselves in the position
of being dragged into a lawsuit should Mastercard
chose to do so. Please advise your client that if
wishes to continue hosting his site with us that the
content must be removed this morning or we will permanently
remove his server from our network and cancel his
account without further notice.
<name removed: RackShack
Staff>
Everyones Internet/Rackshack
--------------------------------------------
Orsm.net
Legal wrote:
Dear <name removed:
rackshack staff>,
What is the criteria you apply
for a "remove it or lose it" approach?
If I as an individual write to Rackshack
with a grievance concerning a site, threatening legal
action, do you automatically tell the site that I
am complaining about to remove their content?
If I am a corporation, or
even a multinational corporation, does it make any
difference to this criteria?
Are you asking Mr <name removed:
orsm> to remove his site
simply because Rackshack have been threatened with
legal action?
Regards,
<name removed: Orsm
Legal>
--------------------------------------------
RackShack
wrote:
Sir,
We are not going to get
into a legal battle with Mastercard over the content
of your clients website. If you wish to fight this
battle and win, the content can be returned to website,
until then it must be removed or we will remove the
entire server from our network permanently. We have
given your client a few hours to accomplish this.
Your offer of providing me with "indemnity"
via a form does nothing for me as we have already
been put on notice by Mastercard. Your form would
do nothing to take us out of the liability loop.
Regards,
<name removed: RackShack
Staff>
Everyones Internet/Rackshack
--------------------------------------------
I've got a few idea's on what to do next but I'd appreciate
hearing what you guys think. Have
your say in the Orsm.net forums here. |
