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Hoaxed US Chamber thumps pranksters with blunt instrument

Can you DMCA a parody that looks like the real thing?

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With this week's lesson in the vagaries of copyright law, we seek to answer the following question: If someone uses your copyrighted material to build a website that fools a Reuters reporter into thinking you've suddenly changed your mind, are you legally empowered to destroy their clever online hoax with a DMCA takedown notice?

Last week, a group of swashbuckling pranksters calling themselves The Yes Men put out an online press release purporting to come from the US Chamber of Commerce. The faux release announced that the Chamber had reversed its controversial opposition to greenhouse gas legislation, and the Yes Men even went to far as to hold a faux press conference, posing as Chamber men.

The faux press conference was interrupted when a (real) Chamber man showed and started saying things like "This is a fraudulent press conference!" You can see the entire episode here:

But such protests from the (real) Chamber came too late to prevent a Reuters news service reporter from penning a story based on the faux press release. The story soon turned up at The Washington Post and The New York Times.

After the hoax was revealed, the faux release remained online, and the (real) Chamber couldn't leave well enough alone. It soon tossed a DMCA takedown notice the Yes Men's ISP, Hurricane Electric, insisting the press release infringed on their copyrights "by directly copying the images, logos, design and layout of the Chamber of Commerce’s copyright-protected official website."

Hurricane did indeed take the release down. According to Wired, the ISP obeys alltakedown notices - whether they're legally sound or not. But another outfit, Hosting.com, quickly put the release back up. And it's still up.

The Net watchdogs at EFF have come out against the Chamber's DMCA tactics, demanding the takedown notice be rescinded. "We are very disappointed the Chamber of Commerce decided to respond to political criticism with legal threats," EFF staff attorney Corynne McSherry said from inside a press release.

"The site is obviously intended to highlight and parody the Chamber's controversial views, which have sparked political debate and led high-profile members to withdraw their support from the Chamber." Parody is protected under copyright law and the First Amendment, which means it can stand up to a DMCA takedown.

But we can't help but wonder if the faux release crosses that line between parody and stark imitation. To be sure, the release uses some, shall we say, heightened language.

"Climatologists tell us that if we don't enact dramatic reductions in carbon emissions today, within 5 years we could begin facing the propagating feedback loops of runaway climate change. That would mean a disruption of food and water supplies worldwide, with the result of mass migrations, famines, and death on a scale never witnessed before," read the faux prepared remarks from Chamber president and CEO Thomas J. Donohue. "Needless to say, that would be bad for business."

But some were fooled - at least initially. That includes not only Reuters but Mother Jones, a site that has closely followed - and criticized - the Chamber's views on climate change.

Speaking with The Reg, EFF senior staff attorney Matt Zimmerman is adamant that the faux release is a parody because it was intended as a parody. "I would argue that a parody is more effective if it gives the reader/viewer, even for a moment, the impression that the work came from the target of the criticism. A work hardly carries the same artistic impact if it's immediately clear that the work is a spoof," he says.

"'The purpose and character of the use' prong doesn't include an 'obviousness' requirement. The Chamber loses on that prong if it can't show that the 'purpose and character of the use' was not for criticism and commentary. Even someone who was initially confused can't honestly argue that the purpose of the spoof was for purposes other than criticism and commentary."

But others disagree. Regardless of what the intention was, says Mike Rodenbaugh, principal in the San Francisco intellectual property firm Rodenbaugh Law, the Yes Men hoax doesn't pass the parody test. "Taking [the Chamber's] entire web site design and completely fooling people crosses the line," he tells The Reg. "I don’t believe they have an argument for fair use."

Jonathan Handel, an IP lawyer with the California firm Troy & Gould, doesn't go quite so far. But he says that at the very least, the hoax lies in a gray area between parody and imitation. "It’s tough when you start to do street theatre on a computer," he says. "There’s no way of signaling that it’s a parody."

Referring to the EFF's argument that the intention of parody makes it a parody, Handel says: "That cuts a very fine line." He can see the faux Chamber's argument - but he can see the (real) Chamber's argument as well.

What we can say for certain is that this rather amusing episode clearly that the DMCA takedown is "a blunt instrument," as Handel calls it. The law is ridiculously flawed - especially when ISPs like Hurricane respond to takedowns without even reading them.

And then there's the familiar irony of such DMCA madness. In the end, the (real) Chamber men played right into the hands of the faux Chamber men. There's no parody like self-parody. ®

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