Sorry, Gas Companies – Parody Isn't Infringement (Even If It Creeps You Out)

https://www.eff.org/deeplinks/2024/10/sorry-gas-companies-parody-isnt-infringement-even-if-it-creeps-you-out

by hn_acker • 2 years ago

221 92 2 years ago

Weird for Netlify to mistake trademark law for copyright law.

amiga3863• 2 years ago

Weird for Netlify to be cowed by someone with deep pockets and, in the absence of a volte-face from those deep pockets, making the bullied party go through unnecessary steps, just in case the deep pockets became angrier and threatened Netlify some more.

Ultimately the bullied party upped-and-left Netlify, after which Netlify wiped its brow and said "phew! that was a close one! i nearly got caught up in a dispute!"

Netlify sound like cowards. I don't think they'd have my back if anyone objected to a website I hosted with them. I shouldn't purchase their services. Also, I should look at the track record of anyone else I'm thinking of using for hosting; do they have a good reputation for defending their clients' rights and telling barratrous lawyers to GTFO?

tdeck• 2 years ago

This website is a gem.

From the FAQ: Where does my money go?

Your purchase is supporting Life-Positive projects that increase life among HLV individuals across the United States. These projects include massage, sauna, and vital fluid transfer.

kreyenborgi• 2 years ago

https://repaer.earth/programs/ omg the balloon there at the bottom hahaha :(((

bdowling2• 2 years ago

Why do they have to use actual companies’ exact names and logos to make their parody, which someone could confuse for a real product? Can’t they use slight variations (e.g., McDowels to parody McDonalds)? Wouldn’t everyone still know who they were referring to?

Edit: Yes, this is satire, not parody, and satire needs to clearly identify its target to work properly. Here, however, the target of the satire appears to be carbon offset sellers, as a farcical “life offset” seller. The companies in question are linked as mere “supporters” of the satirical service; they don’t appear to be the direct target of the satire.

naught0• 2 years ago

They shouldn't have to. Is silencing criticism with the threat of a frivolous lawsuit preferable to you?

They feature human babies in test tubes on this page: https://repaer.earth/about

To me, it's obvious parody

bastawhiz6• 2 years ago

People use parody names because they're afraid of getting sued, not because they have to. If the purpose of your website is activism, why water it down?

bluGill3• 2 years ago

Because trademark law is complex and you can be sued for using real trademarks if anyone could think this was real and not a parody. Generally using obvious parody names gets the point across better anyway.

myrmidon2• 2 years ago

Because it would ruin the whole point.

Satire aims to evoke an emotional response, to point out moral failures and inconsistencies as crassly as possible.

Social criticism that first and foremost avoids offending anyone is a waste of paper in my opinion always.

echelon2• 2 years ago

It's still trademark infringement and both the activists and the middlemen (Netlify, in this case) can be sued.

This "satire" all comes across as "I'm 14 and this is deep." We get the joke. Just use a fictitious logo.

Gibbon1• 2 years ago

A suggestion for California would be to update it's SLAPP law to include fraudulent DCMA take down actions. Best would be make both the carrier and the entity filing the DCMA complaint equally liable.

sowbug• 2 years ago

Imagine The Onion but using only fake company names in its articles.

See also "satire is dead" meme.

xbar2• 2 years ago

Limiting parody by preventing trademarks is a terrible way to limit free speech. It is a slippery slope.

ravenstine• 2 years ago

Would the film Idiocracy have been as funny if instead of making fun of Costco, Starbucks, and Carls Jr., they referred to them as Costinc, Sunbucks, and Carlos Sr.?

Parody doesn't necessarily require that you make significant alterations to a symbol or name. Only imbeciles would think that the fictional "Fuck you - I'm eating" slogan actually represents the Carls Jr. company in real life.

hshshshshsh• 2 years ago

Why do they have to use actual companies’ exact names and logos to make their parody, which someone could confuse for a real product?

So what?

shrubble• 2 years ago

They neglected to use the phrase "precious bodily fluids" in their Plasma Pals explanation, which is mildly disappointing.

cwillu• 2 years ago

“vital fluids of the children” is close enough for government work.

ziddoap5• 2 years ago

Frustratingly, Netlify made us go through the full DMCA counternotice process—including a 10-business-day waiting period to have the site restored—even though this was never a DMCA claim.

DMCA is a scourge.

I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.

Edit: Just to be abundantly clear. My comment is a general comment on the DMCA, because the DMCA is mentioned quite a bit in the article, and the EFF was forced (erroneously) to follow the DMCA counter-notice process.

bastawhiz6• 2 years ago

This isn't DMCA, it's just Netlify having a silly process.

ziddoap5• 2 years ago

Netlify made us go through the full DMCA counternotice process

xbar2• 2 years ago

Netlify will not spend money to figure out a more lightweight process in order to stay further from the edges of DMCA. DMCA is too scary to play with, so just they transfer the cost and risk by making the affected party file the form.

ryandrake• 2 years ago

I think one of the worst repercussions of the DMCA (there are so many), is how it seems to have perversely motivated tech companies to implement their own even worse bespoke processes for handling complaints--processes that are not actually DMCA. Like, DMCA is awful, but the process YouTube and others put you through is even worse, less transparent, and tend to put more, rather than less burden on the target/victim.

toast0• 2 years ago

I think the whole thing is dumb, but at the very least there should be some form of punishment for bogus DMCA claims, and purposefully labyrinthine DMCA processes.

This isn't a copyright claim, so DMCA doesn't apply, but the DMCA rewards labyrinthine DMCA processes by granting the provider immunity. Following notice / counter-notice timelines in the law means the host is not liable to either of the other parties for the takedown or the restoration.

Might be nice if there was a faster process to restoration if the customer vows to indemnify the host though.

wbl• 2 years ago

No, it doesn't because trademark isn't copyright.

bluGill3• 2 years ago

Is this really DMCA? Most take downs are not actually DMCA, they are different process that looks a lot like the DMCA. This is an important question because if this isn't actually a DMCA request but something similar than the EFF can go after the host for breach of contract by not serving their legal content (or the EFF signed a bad contract that allows the host to take down their content arbitrarily - though even then the courts may say this content should not have been covered). If this actually is the DMCA, then the notice is made under penalty of perjury and the EFF should press charges against whoever sent the notice - doing their best to get an example made of this person (probably a lawyer who should be removed from the bar for their actions once it is shown they committed perjury as part of their legal duties and thus are not ethical)

marcosdumay• 2 years ago

I think the whole thing is dumb

It's not, it's very smart. You probably are misidentifying the goal of the people that created it.

ziddoap5• 2 years ago

I don't care about the goal, I care about how it is actually used in practice.

pwg• 2 years ago

but at the very least there should be some form of punishment for bogus DMCA claims

As numerous other comments accurately point out, this was never a DMCA claim.

However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate.

The punishment would then be the recipient suing the sender for perjuring themselves in the sending of the bogus complaint. The problem is that is a very hard case to prove, and requires the expense of a lawsuit, so it is seldom ever taken by those who receive bogus complaints.

Dylan168072• 2 years ago

However, for actual bogus DMCA claims, there is a "form of punishment" written into the law. The sender of an actual DMCA claim has to swear under penalty of perjury that they are the proper rights holder and that the claim they are making is truthful and accurate.

Perjury only applies to the "proper rights holder" part.

Being very reckless about sending out claims has no punishment.

hn_throwaway_99• 2 years ago

I think this parody website is great, and I'm glad EFF went to bat for them, but (and I hope this doesn't sound semi-conspiratorial) I think this may have been the website creator's goal all along. If it was, congrats, I think you played the energy companies well.

That is, my thought is that the website deliberately used real company logos and links (it would have been easy to use fake, similar-parody names) because they knew they'd be likely to receive C&Ds from these companies whose knee jerk response would be to demand their logos be removed. Then bam, the companies seem clearly in the wrong legally, the EFF goes to bat for them and also writes a long blog post like this, and instant Streisand Effect. I mean, I would have never heard about this website if it weren't posted here. FWIW I think this was a good strategy on the part of the website creators, so kudos.

bdowling2• 2 years ago

Streisand effect bait?

nneonneo• 2 years ago

The parody website in question: https://repaer.earth/

It uses real logos from three gas companies, two of which tried (unsuccessfully) to have their logos removed.

Buttons840• 2 years ago

There's been a lot of talk about free speech on social media. A lot of it is bad faith political talk, but still, there is a lot of scrutiny of free speech on social media. Rightfully so, it's important for people to be able to speak in the modern "town square", but it's also important for people to run their own websites how they please.

We're targeting the wrong layer with our concerns about free speech. We should regulate hosting providers and enforce free speech on hosting providers, not on social media websites. People should have a right to host their content somewhere, but not the right to violate Twitter's ToS.

Unfortunately, relatively nobody cares about hosting. If Twitter bans a journalist people get upset, if Netlify caves to a slight bit of pressure takes a journalist's website down, nobody cares.

amiga3863• 2 years ago

People should care: https://protectthestack.org/

aftbit• 2 years ago

Yes, 100%! We do not have a real "public square" on the internet. The whole thing is a private mall, owned and operated by a dozen or so large public companies. If I want to host something large-scale which is legal but unpalatable to those dozen companies, there is no real way to do that today.

RunSet• 2 years ago

That parody website responds like it is mining crypto in the background.

Not going viral when I can't share it in good conscience.

pipes• 2 years ago

I don't get this. If it was a person they were claiming was associated with their fictious programme surely that person could sue for defamation?

glitcher• 2 years ago

From my understanding parody is not defamation.

hunter2_4• 2 years ago

Right, plenty of the artists parodied by Weird Al are individuals. Any permission sought (or denials respected) are purely for goodwill, not legally required.

That said, Weird Al hasn't actually distributed unmodified trademarks of other entities, to my knowledge. Even if that would generally be problematic, the context of a "featured partners" list as in TFA probably falls below a threshold of likelihood of confusion which arises in other unauthorized uses of trademarks.

JoeAltmaier2• 2 years ago

I kind of side with the gas companies on this one. They objected to their real names and logos being used to market a parody site. Their companies weren't being parodied; they were simply added to the site intact (to lure search engines to list their site? to add legitimacy?)

The article doesn't touch this issue, they just mock the gas companies. Not a real article, just another slam piece couched as journalism.

chmod775• 2 years ago

Their companies weren't being parodied

They obviously were. It's a parody of carbon offsets.

JoeAltmaier2• 2 years ago

Obviously they weren't. As you so correctly point out, it was a parody of a government program.

avazhi2• 2 years ago

Not a US lawyer but would love to hear from anybody that is: could the gas companies sue for defamation for this?

In Australia I suspect defamation or misleading and deceptive conduct under our ACL might be possible avenues for the gas companies, although under the ACL the impugned conduct must be ‘in trade or commerce’ so that could be one problem with going after an ‘activist group’.

rmholt• 2 years ago

Tried to do some online research (heh) and it would appear that satire of public figures is just straight up protected by the first amendment. https://en.m.wikipedia.org/wiki/Hustler_Magazine_v._Falwell

avazhi2• 2 years ago

I don’t think linking directly to real companies and referring to them as partners while using their logos is all that similar to the Falwell example.

I haven’t visited the site from this story, but had they clearly marked the site as parody?

OkGoDoIt• 2 years ago

The site is amusing, and sure it feels fairly obvious that it’s parody/satire in this context, but also I went through the FAQ and fine print and I don’t see any admission that it’s parody/satire. They seem to hold very true to the joke to the point that it does feel a bit worrying. At what point does parody/satire become misinformation and defamation? If my mom landed on this site after it was emailed to her from one of her Fox News-loving elderly friends, I’m not sure she would have enough context to realize it wasn’t real. It seems like it would be better if they at least had a disclaimer or notice or something on the bottom of the site.

On a related note, I hosted The Empire Strips Back parody Star Wars burlesque show at my theater, and they had to have disclaimers everywhere explicitly saying it was a parody production. They got sued and won in court but the disclaimers were an important part of that.

Of course if the main concern is the misuse of the DMCA to get this taken down by claiming copyright infringement, that’s clearly an abuse of the DMCA. But if the companies involved sued for defamation/slander/whatever, I think there’s at least a legitimate concern here.

aidenn0• 2 years ago

The original A Modest Proposal[1] also didn't include any admission it was parody/satire, and held very true to the joke to the point that it seemed worrying. The more uncomfortable it makes you, the more it sticks.

Also, the DMCA was not involved (though it's not clear that Netlify was aware of that).

1: https://en.wikipedia.org/wiki/A_Modest_Proposal

hobs• 2 years ago

The disclaimers were an important part of that likely because it made it even easier to establish than using some sort of "reasonable person" argument - that doesn't make it the standard required though.

neilv4• 2 years ago

I'm not thrilled with Netlify's behavior as claimed by this EFF post, but I'd like to speak on a different concern:

Couldn't this activism have been just as effective, if done without libel?

We're in the AI counterfeiting era now. It's time to be more conscientious about false accusations.

"It's OK when I do it, because it's protected parody/satire! But when other people do it, to smear my business, or my friend, or my favored political candidate, by name, and they claim it's parody/satire, it's not OK, because... uh... reasons!"

If we think we're entitled to do it, can we complain when millions of others then also do it?

chatmasta• 2 years ago

Who says the same people are advancing the conflicting arguments? I can only speak for myself, but my position is consistent here.

(btw, what is the name of this logical fallacy that assigns two beliefs from a population to the population as a whole? It seems like a variant of No True Scottsman but maybe there’s a more precise label for it?)

neilv4• 2 years ago

I'm not an expert writer, but I thought it was an OK way to say "these two beliefs we've heard are conflicting; don't hold them both", as part of an argument to say that we need to rethink and think more clearly about "parody"

Obviously, we collectively have those conflicting beliefs.

And I suggest that collectively resolving these is going to be forced by AI fakes and social media.

feoren2• 2 years ago

No. Poking the hornet's nest is an effective and sometimes necessary part of activism. The whole reason we've heard of these guys is because they poked those companies. That's why they used their real logos. Using fake logos makes no sense there, and if they had done that, neither of us would have heard this story.

It's a bit like the argument "sure, Black Lives Matter, but do they have to be kneeling during a football game?" Protests are fine, as long as they never inconvenience anyone, are never loud or obnoxious, are never seen nor heard nor felt. Well, then, they're not protests, they're LARPing.

I get the feeling that in practice, those "uh... reasons" will turn out to be blatant. As in: one is obviously an attempt to scam and defraud people, and the other is an obvious parody. And obviousness matters: the crux is whether it's likely to deceive a "reasonable person" or not. You can like or hate that criteria, but that's been consistent since trademarks were invented.

neilv4• 2 years ago

* It's OK to fabricate about a company doing some ridiculous thing, because it's activism, and they are getting attention to their cause.

* It's not OK to fabricate about some politician doing some ridiculous thing, because that's lying, to manipulate?

How is the latter case not also activism, and getting attention to their cause?

olliej• 2 years ago

I still don’t understand how these fraudulent DMCA claims aren’t outright criminal - I thought even the garbage state of the law at least made objectively false claims requires a statement under penalty of perjury that you have a good faith belief in the accuracy of the claims.

Filing a DMCA claim over a trademark violation is a direct admission that that statement is false because the requirement is you identify the copyright violation and that you are the owner or representative of the owner of that copyright.

Sorry, Gas Companies – Parody Isn't Infringement (Even If It Creeps You Out)

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