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Orsm.net Prycless...

Here's how the email battle with my host played out [Note: I have snipped out names and email addresses where necessary]...

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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.

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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.

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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

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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>

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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

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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>

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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

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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.


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