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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