Big chem deploys DMCA to takedown parody site

My, how the Digital Millennium Copyright Act, the DMCA, is turning out to be a fine and flexible friend. It extends across continents. It reaches into computers in Norway and Russia, which when we last looked, were sovereign nations and not US States.

A fortnight ago it was used to protect price lists, claiming that these are trade secrets. And now it has been turned onto a parody site.

Last week, the Yes-Men created a replica of Dow Chemical's website at the domain www.dow-chemical.com.

"Dow is responsible for the birth of the modern environmental movement," begins the The Yes-Men's sophisticated detournment of the official site. The group also published press releases entitled "Responsible Care: Aiming For Zero Responsibility" and a canned quote from 'a Dow Spokesperson'.

Dow acquired Union Carbide and inherited the responsibility for the horrific Bhopal disaster, which has so far killed 20,000 Indians after a leak of the unstable chemical methyl isocyanate.

Union Carbide workers were unscathed: management told its own staff to run in the opposite direction, while at first denying, then downplaying down the seriousness of the leak to the local community. Carbide's settlement contrasts with Exxon's compensation after the Alaskan oil spill, and shows how cheaply it valued human life. The cost to Exxon of cleaning each photogenic seal was $944, while each victim of the methyl isocyanate spill received an average of $500. Dow insists it's all water under the bridge.The group used the name of Dow Chemical CEO Michael Parker's son James. When Dow discovered the prank, they served the hoster Verio with a letter from their attorneys Howard, Philips and Andersen, a Utah-based law firm.

Copyright Cocktail

Which is where it gets very interesting.

The letter[78kb PDF] spearheads a collection of copyright and trademark claims with the DMCA boilerplate.

Many of the claims are arguable, and on some grounds precedent favors the litigant. But the use of the DMCA obliges the recipient to take immediate action. And in the current frosty climate, that is intimidation enough:

"The carrier must reply. It can state that to best of its knowledge this does not violate what they're citing, but it has to be in good faith, or the carrier will lose his exemption status," says Robin Bandy who runs a co-operative ISP in Oakland, CA.

"The aggrieved party is claiming that this violates copyright - but they're making a legal assertion. And that's bullshit half of the time, as they've got programs generating these letters."

Bandy advises other ISPs to check that these robo-generated emails have been cryptographically signed and come from the aggrieved party, or someone verifiably associated with them.

"In the one case we received a complaint, all they cited was a file name. There was no assertion of the contents of the file therefore they were not even making a valid assertion of copyright. It came from a system that had no traceable relationship to the MPAA and no reasonable network admin would assume that it did."

Parodies represent a legal minefield. Parody is interpreted as commentary, but passing-off with the intention to deceive is not likely to find favor with the court.

Bandy points out that Dow Chemical's complaint that the Yes Men provided bogus information on its whois entry does not affect the ISP. The contract between a domain name holder and the registrar "is not Verio's problem", he points out.

Verio ignored a request by the World Trade Organization after one of The Yes Men registered an information site at gatt.org, which has served as the springboard for a series of sophisticated infiltrations, keynoting unsuspecting conferences and even a CNBC finance broadcast.

Dow Chemical had not responded to a request for comment at publication time. ®

Related Links

The Yes Men
Bhopal info
Dow Chemical

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