L.A. TIMES / NEWS / FRONT PAGE / STORY
Tuesday, November 12, 1996
Web Wars: Companies Get Tough on Rogues
Studios and Fortune 500 firms
target unauthorized Internet sites that feature
their products. Crackdown affects fans as well as
foes.
By AMY HARMON, Times Staff Writer
Gil Trevizo received the e-mail from 20th
Century Fox's attorney the night before the big
September premiere of the heavily promoted sci-fi
series "Millennium."
If he was a "true fan," the 25-year-old
college student was informed, he would remove his
World Wide Web site paying homage to the show.
Immediately.
He did--after persuading the University of
Texas to let him log back onto his Internet
account, which school officials had quickly
switched off after Fox alerted them to his
apparent piracy of its copyrighted material.
The ensuing flamewar between Fox and its
Internet fans reflects corporate America's
growing discomfort with the proliferation of
"unauthorized" Web sites about their products.
And it underscores the difficulties in mapping
existing intellectual property laws onto
cyberspace.
Anyone with an opinion and a modem has long
been able to declaim online. But the explosion of
the Web has spurred the creation of personal
"home pages" that incorporate graphics, audio and
video and can be viewed by the Web's millions of
users.
While seeking to exploit the new medium for
their own ends--Fox, for instance, has its own
"Millennium" site--many firms are finding
themselves the targets of online criticism--or,
in some cases, unwanted praise.
Either way, it is unfamiliar territory for
companies accustomed to enjoying control over
what gets disseminated about them. By and large,
they don't like it.
Brandishing trademark rights and asserting
copyright claims, Fortune 500 companies including
Time Warner, Kmart, Gateway 2000 and Intel Corp.
are sending in the lawyers. Their quarry--usually
individuals with scarce resources--typically
agree to shut down their sites or remove
offending material.
Web dabblers who publish "fan" sites about
musicians and TV shows, or those who use
cyberspace to lambaste corporate practices they
dislike, are increasingly outraged by the
companies' legal hardball. They say they're
exercising their free-speech rights.
"If you look at the official sites, they
tell you exactly what they want you to know,"
says Lori Bloomer, a "Millennium" fan leading the
e-mail campaign against Fox. "The networks treat
the Web as an extension of television and it's
not. It's more like a party line."
But the "Millennium" dispute and other
similar cases also signal the ephemeral nature of
intellectual property in a digital world, where
words, images and sounds can be copied, modified
and spread across the globe with a few clicks of
the mouse.
Rights at Stake
In such an environment, corporations fear,
the value of logos and icons could disappear into
the ether. If owners of creative work do not
assert their right to be compensated for copying,
they argue, they will inevitably lose those
rights.
"It was Fox's plan that our official Web
site did not go up until the premiere night,"
said Fox attorney David Oakes, who recently
persuaded the creators of another "unofficial"
site about "Millennium" to tear it down.
"These two sites decided they would undercut
Fox's Web site by doing their own. They took our
images, they took our logo. They are doing things
that are against the wishes of the creators of
the show."
Copyright law has always sought to strike a
balance between the public's right to free speech
and the creator's right to control the
distribution of his work, legal experts say. What
is unclear is how that balance will translate in
the hyper-copying culture of the Internet, where
anyone can be a publisher and "information wants
to be free" is a longtime motto.
"Some people have referred to the Internet
as the home shoplifting network," says
Christopher Wolf, a copyright lawyer at
Proskauer, Rose, Goetz & Mendelsohn in
Washington.
"People have a sense of entitlement. They'll
say 'Gee, Microsoft had a good year,' and copy
some software. You don't see people helping
themselves to a Cadillac because GM had a good
year. Soon they'll be able to do that with songs
and movies. There have to be both legal and
technical solutions."
But others argue that the laws and economics
of copyright will have to be radically
reinterpreted to square with the Net's
free-wheeling nature.
They note that since most individuals are
not making money from the copied words and images
on their site, their transgressions could easily
be overlooked--just as taping compact discs for
friends or copying a newspaper article for
colleagues is routinely ignored.
Purpose of Copyright
"The whole purpose of the Web is to allow
people to communicate with each other," says
Pamela Samuelson, a UC Berkeley law professor who
specializes in online copyright issues. "That's
also the purpose of copyright."
With a different understanding of copyright,
Fox might distribute portions of its media
properties as widely as possible, for free, as
some computer software is distributed now. It
would make its money by luring digital consumers
back for more, or linking it to other services
that they would be inclined to pay for.
Other uncertainties arise from the very
technology on which the Web is based. Web
surfers' computers automatically store temporary
copies of every page they view. The Clinton
administration's proposed extension of the
copyright law to cyberspace would criminalize
such copying, as well as imposing strict
licensing rules for other acts of digital
reproduction.
The controversial measure, known as the
National Information Infrastructure Copyright
Act, is set to be discussed at the World
Intellectual Property Organization in Geneva next
month, and a version of it will probably be
reintroduced in Congress next year.
But for now, intellectual property in
cyberspace is governed by predigital laws. And
some experts say recent corporate efforts to shut
down critics and parodists may skirt even those.
Last month, for example, Gateway 2000 filed
a lawsuit against Jeff Blackmon, a former
employee whose Web page included a list of the
top 10 reasons not to buy one of the company's
computers. Blackmon, 25, was served with a
restraining order at his home in Independence,
Mo., charged with trademark infringement and told
to appear in court the next morning.
He took the page down. "They said they
didn't want me to devalue their logos," he says.
Gateway declined to comment.
The "Kmart sucks" site, where 19-year-old
Jim Yagmin describes in unflattering terms his
former job at a Kmart store, still stands for the
moment, albeit in altered form.
Last summer, Yagmin received a letter from
his Internet provider, which had received a
letter from Kmart's attorneys, directing him to:
"(1) Remove the icon 'K' and any appearances of
'K' with the likeness of that used by Kmart,
including the red Kmart and the blue and grey K
sucks. (2) Remove the name Kmart from the 'title'
of any page. (3) At the bottom of 'The Eternal
Fear' page remove the lines 'Go steal something
from Kmart today, and tell 'em the Punk God sent
ya.' "
He replaced the 'K' with an 'X' in most
cases. But, two weeks ago, he says, his Internet
administrator told him the modifications were not
sufficient, and that the site would have to come
down.
Seen as Humorous
A creative writing major at Brandeis
University, Yagmin--whose site prompted dozens of
e-mails relating similar job experiences--says he
copied the original 'K' from Kmart's own site.
"That's the easiest way to do it. I went to
a bunch of different sites and collected stuff,"
Yagmin says. "It was never intended as a big
political statement. It's just a humorous page
that I wrote for my friends and people who had a
job at places like that. It started turning into
a bigger issue when Kmart brought in lawyers."
"We monitor the use of our trademark
everywhere, including cyberspace," says Kmart
spokeswoman Mary Lorencz. "We've spent a great
deal of time and money creating a positive image
for it, and it's obviously important to us."
Copyright law includes a special exemption
for parody, which was strengthened by a 1994
Supreme Court ruling that 2 Live Crew's parody of
Roy Orbison's song, "Pretty Woman," was protected
speech.
Trademark law, focused largely on preventing
consumer confusion over who is providing which
products and services, is not so lenient.
Michael Lissack, a Wall Street
whistle-blower and a former managing director of
Smith Barney, says that is exactly why the
brokerage used the law to go after his Web site
containing news items on municipal bond scandals.
Visitors are greeted with the image of a thief
picking a man's pocket. The caption: "Smith
Barney making money the 'old-fashioned way,' " is
a spoof of the firm's advertising slogan.
Threatened with a trademark infringement
suit, Lissack renamed his site "the Not Smith
Barney Page" and stopped using his former
employer's logo.
"It was nothing more than harassment with
respect to the rest of my whistle-blowing," says
Lissack, who pays about $25 a month to maintain
his site. "I've been on radio and TV and in
newspapers, but what's great about the Web is,
it's always there whenever people want to get
it."
"To adopt our trademark over what he calls
the municipal bond scandals is on the face of it
a misuse of our property," says a Smith Barney
representative.
Satirical use of trademarks is protected
speech, but Intel insists that gadfly Robert
Collins is still infringing with his site's
slogan: "Intel Absolutely Not Inside," a play on
the corporate "Intel Inside."
Collins' site, "Intel Secrets: What Intel
Doesn't Want You To Know," is devoted to
revealing hidden technical details in Intel
processors.
'Rogue Sites'
Perhaps, not surprisingly, at least one
public relations firm specializes in the handling
of what it dubs "rogue sites" for corporate
clients. Known on the Web by the title of the
rogue site erected in its honor, "Bastard PR
Firm," New York-based Middleberg and Associates
devises "net strategies" for firms under Web
attack.
"Up until recently you had no recourse,"
says Don Middleberg. "Maybe you put letters in
the mail to the Better Business Bureau or maybe
you put out leaflets. Now you have the Net, it's
a cheap way to complain. Some people have
legitimate complaints. Other people are being
nasty and vicious. Look at 'Kmart Sucks' . . .
there's no restrictions, there's no censorship
and a lot of companies are getting very nervous."
Indeed, corporations and other institutions
have employed widely varying methods for dealing
with alleged copyright and trademark violators.
The Church of Scientology filed lawsuits
against critics who posted its literature on the
Internet, raided the homes of several of its
targets and seized their computer equipment--a
practice that's permitted in certain
circumstances under civil copyright statutes.
Dutton Children's Books, on the other hand,
gently informed the maintainer of a "Winnie the
Pooh" site that "[W]e too wish that The Bear have
a forum where Interested Parties may discuss
him--and where they will find more than Little
Smackerels of Items of Note. Should you at some
later date wish to create such a page, and
include a limited amount of Pooh text and/or art
. . . then you will need to apply to Dutton
Children's Books at that point for prior written
permission."
Ironically, the fan sites that exist almost
solely to laud and promote a particular product
have fewer defenses under current law than those
slinging arrows.
Injured cyber-fans, who use the sites to
trade rumors about upcoming episodes, write "fan
fiction" and link to other sites of interest,
blame the corporations behind their beloved
entertainment properties for failing to
understand the nature of the new medium.
"They told me if sites aren't officially
sanctioned they could provide erroneous
information," says Trevizo. "I was trying to
explain to them that they're alienating a huge
amount of fans, but they didn't seem to care."
Economic Incentive
Fox spent more than $100,000 on its
"Millennium" site, and like many companies
eventually may sell promotional materials through
it. So the company has a basic economic motive
for wanting Internet fans to have fewer places to
find series information. Fox attorney Oakes says
Trevizo used images from its site on his own, as
well as information from a bootlegged video of
the first episode.
But the network insists the real issue is
exercising creative control. "The X-Files,"
another Fox show, spawned dozens of fan sites.
But it also led to the distribution of digitally
altered nude photos of one star, Gillian
Anderson. Fans say such problems are regrettable,
but that the networks should find some way around
them.
Since Trevizo tore down his site, Web
surfers organized from an electronic mailing list
of "X-Files" fans have bombarded the network with
e-mail. There is even talk of an advertiser
boycott.
"They're sending everything from protests to
hate mail," says Fox attorney Oakes. "This has
forced us and other studios to focus more on the
misuse of our property on fan Web sites."
Warner Bros.' "cease and desist" letters to
Internet fans led to the formation of the Warner
Internet Fans Assn. The Web's "Trademark Wars"
even have their own home page. A typical sample:
"Trademark owner: Viacom/Paramount (Brady Bunch)
Targeted site(s): The Unofficial Brady Bunch Home
Page. Standard fan page story: Fan starts page.
Gets mean letter. Takes stuff down."
According to Misha Glouberman, a Toronto
Webmaster who keeps the list up to date, others
to receive "cease and desist" letters regarding
copyright or trademark infringement include a
"Melrose Place" fan maintaining a site in
Germany, a Mountain View resident keeping a list
of links to Lego sites on the Web and "Star Trek"
fans who leaked information about upcoming shows.
Several of them no longer exist. But more
spring up every day. And the aggressive legal
tactics may backfire.
"The real issue here seems to be that they
feel uncomfortable not having control over what
they don't own, and seeing it linked to what they
do own," says Esther Dyson, chairwoman of the
Electronic Frontier Foundation. "But they're just
going to have to get used to it. The difference
is that in the past other people's comments about
them were not as visible or persistent."
The "First Unofficial 'Millennium' WWW Site"
went up before the second episode. Several dozen
other fans activated "protest sites" before the
third show aired last Friday. Using slogans from
"X-Files" and "Millennium," they are picking up
the tools of parody. "They're shutting us down,
Scully," the sites proclaim, playing on a line
instantly recognizable to fans of the series.
"Free speech is out there."
Copyright Los Angeles Times
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