Tag Archive for: Parody

Trump Gets Mad That Twitter Won’t Take Down A Parody Of Mitch McConnell; Demands Unconstitutional Laws

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I’m still perplexed by Trumpian folks insisting that the President is a supporter of free speech (or the Constitution). It’s quite clear that he’s been a huge supporter of censorship over the years. The latest example is, perhaps, the most bizarre (while also being totally par for the course with regards to this President). For unclear reasons, the President has retweeted someone with fewer than 200 followers, who posted a picture of Senate Majority Leader Mitch McConnell in traditional Russian soldier garb… while complaining that Twitter won’t take that image down, while it has “taken down” manipulated media from his supporters.

The tweet says:

Why does Twitter leave phony pictures like this up, but take down Republican/Conservative pictures and statements that are true? Mitch must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!

He then tags two Republican Senators who have spent years pushing bullshit bills and making misleading arguments about how evil certain internet companies are.

There are so many things wrong with this one tweet, I feel it’s best to number them:

  1. First of all, content moderation at scale is impossible to do well, so it never is reasonable to use a single anecdote to prove bias or to claim that Twitter is somehow doing something wrong. And that’s even if this image should have been taken down, which it should not have.
  2. Next, this is just parody. And it’s obvious parody (except, I guess to our humorless President). There’s no reason to take down parody.
  3. Twitter isn’t taking down “Republican/Conservative pictures and statements that are true.” They are taking down or putting warnings on manipulated media that has been posted with the intent to mislead. No one is going to look at the picture of McConnell and think it’s proof that he really is doing Putin’s bidding.
  4. And, what “Republican/Conservative pictures and statements that are true” has Twitter actually taken down?
  5. Repealing Section 230 would make this situation worse for Trump and his fans, not better. If Twitter was likely to face lawsuits for tweets that infringe upon rights, then it has much stronger incentive to take down the kinds of defamatory, bogus tweets that Trump and his fans like to put up regularly.
  6. And it would still have no reason to take down a parody image like the one Trump is tweeting.
  7. Even if Twitter was choosing to take down content from Trump fans and allowing content from his critics to stay up that’s perfectly legal (and, again, there remains no evidence to support this claim). There is nothing against the law about being politically biased. If there were, then Fox News, Breitbart, OANN and others would be in a deep pile of shit. Yet, somehow all the “social media is biased!” folks never seem to address any of that.
  8. Bonus round: Because of Trump’s continued unwillingness to understand the Streisand Effect, he just gave this image that very few people saw, a massive boost in attention. For what?

But, of course, Josh Hawley rushed in to use this travesty to push his blatantly unconstitutional bill.

Hawley doesn’t say which of his many, many anti-Section 230 bills he’s talking about, but in saying that it’s the bill that would “permit individuals unfairly censored by #BigTech to sue!” he likely means this particularly unconstitutional pile of garbage. Even if the bill somehow passed (and it won’t) both Houses of Congress and somehow wasn’t judged unconstitutional (it would be), it still wouldn’t do what Hawley and Trump seem to want it to do.

Without Section 230 protections Twitter would be much quicker to take down this kind of nonsense to avoid liability. It wouldn’t magically decide to keep up Trumpian propaganda that might get it sued. We already know this is true because we see it in the copyright space. In copyright, there is much more liability for leaving infringing content up, because of the DMCA 512 safe harbors not being nearly as broad as Section 230’s immunity provision. And, because of that, we’ve seen Twitter take down infringing content from Trump and his fans much more frequently than they take down (or label) other content. Because the lack of a liability shield means that Twitter would have more pressure to take this content down.

It’s difficult to believe that someone like Josh Hawley doesn’t know this. But Josh Hawley — the very definition of the elite — has made his reputation by lying to stupid people, while pretending to be against the elite. And so he knows that this bill can’t pass and that it’s unconstitutional, and that it would do the opposite of what he claims. But he seems to be betting on stupid people buying into this latest culture war.

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Parody Washington Post Leads To Bogus Legal Threat, And A Reminder Of An Old Internet Lawsuit

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As you might have heard, the famed pranksters The Yes Men were recently involved in something of a parody news story. They printed up and handed out a ton of parody Washington Posts, dated May 1, 2019 (note: a date a few months in the future) with a cover story claiming to be about President Trump being removed from office. People who got their hands on the printed edition said that they looked pretty similar to an actual Washington Post. The pranksters didn’t just print out newspapers, they also set up a website at my-washingtonpost.com. The Washington Post itself was not amused and appears to have sent an incredibly stupid cease-and-desist letter from a publication that should know better.

Actually, let’s be clear: the Washington Post does know better. As Public Citizen lawyer Paul Levy notes in a post we’ll talk more about down below, the Washington Post’s double standard shines through based on its reporting on other parodies in comparison:

By an amazing coincidence, on the same morning that the Post parody was distributed, the Post ran this story about a Facebook page spoofing the Maryland state government.  The story made clear that the reporter found the whole thing very amusing.  The Post’s coverage of the parody aimed at itself showed no such sense of humor.  “We will not tolerate others misrepresenting themselves as The Washington Post, and we are deeply concerned about the confusion it causes among readers,” Post spokeswoman Kris Coratti said. “We are seeking to halt further improper use of our trademarks.”

While the Washington Post’s cease-and-desist claims that it “recognizes there are important First Amendment protections for parody and satire,” the rest of the letter appears to forget that. Thankfully, the Yes Men have EFF representing them, leading to quite a response letter written by EFF legal director, Corynne McSherry.

We are frankly disappointed that the Washington Post has chosen to take this approach. Given the content of the site and the physical paper, and the ample publicity the spoof has generated, it is difficult to imagine that any member of the public would be confused. Moreover, given the Washington Post’s long history of defending free speech and fair use, we had hoped that your paper would recognize the spoof site is entirely legal critical speech.

But there’s something else here that goes unmentioned by either the Washington Post or EFF in its response. And it’s that (1) the very same URL that the Post is complaining about was once subject to a different trademark lawsuit (2) the Washington Post told a court that it was absolutely critical that said domain be handed over to it (3) which happened… and most importantly (4) the Washington Post did literally nothing with the domain and allowed it to expire, after which it sat unused for years.

This brings us back to the post that eagle-eyed internet lawyer Paul Levy wrote, highlighting that this domain was actually at the heart of a key trademark/domain name dispute from the early 2000s.

In the case of Coca-Cola Company, et al. v. William S. Purdy Sr., et al. in the 8th Circuit, there was a dispute between a few different companies — including the Washington Post and Coca Cola among others — who were angry at anti-abortion activist William Purdy, who had registered a bunch of domains that included the trademarked names of these companies, which he then used to push his activist message. One of the domains on the list? Yup: my-washingtonpost.com. As the 8th Circuit explains, at one point Purdy even set up a… parody Washington Post site at that domain:

For several days in early July 2002 Purdy linked the domain names my-washingtonpost.com and drinkcoke.org to a website displaying what appeared to be a front page originating from washingtonpost.com. The page with this format featured the headline “The Washington Post proclaims ‘Abortion is Murder’ ” and contained graphic images of aborted fetuses next to Coca-Cola’s trademark and the words “Things Don’t Always Go Better With Coke. Abortion is Murder-‘The Real Thing.’ ”  (“It’s the Real Thing” is a registered trademark of the Coca-Cola Company.)   Sometime after this litigation began, Purdy also linked many of the domain names to his own websites which contained references to a claim that plaintiffs supported abortion, graphic photos of aborted fetuses, and links to abortionismurder.com.

Counsel for the Washington Post entities sent a cease and desist letter to Purdy on July 8, 2002, and it persuaded his Internet service provider (ISP) to stop hosting the website at my-washingtonpost.com. Counsel for McDonald’s and Pepsi contacted Purdy and his domain name registrars with similar requests around this time.   During a telephone conversation with counsel for the Post entities on July 8, Purdy acknowledged that he had published a counterfeit front page at my-washingtonpost.com and claimed that his actions were protected by the First Amendment.   The record indicates that Purdy offered to comply with the request of the Post entities if they would publish something written by him on the Washington Post editorial page, but they declined.4  A few days later Purdy reactivated my-washingtonpost.com with a new ISP and published another counterfeit washingtonpost.com front page with antiabortion headlines and graphic content.   He also registered washingtonpost.cc and washingtonpost.ws, linked them to abortionismurder.com, and began using the email address dontkillyourbaby@ washingtonpost.cc.

The lower court had ruled against Purdy, saying that he was violating the law with his cybersquatting, and Purdy (somewhat gleefully, apparently) decided to thumb his nose at the court and kept on registering similar domains for similar purposes — leading the court to issue an injunction barring him from even registering such domains. Levy and Public Citizen — back in 2003 — had sought to file an amicus brief in the case, saying that while the court was right to reject Purdy’s use of these sites in these cases, the injunction barring him from registering similar domains went too far (since it was conceivable that he might set up sites that were legitimately about those companies, rather than designed to fool people). The court refused to accept that brief.

However, as Levy noted, during the course of the case, the Washington Post had argued that it was quite important that it gain control over Purdy’s my-washingtonpost.com:

The Post (and the other companies), claiming that ownership of my-washingtonpost.com was vital to its business, obtained preliminary and later permanent injunctive relief, persuading the federal court in Minnesota, and then the Eighth Circuit, that Purdy’s having offered to trade the removal of his web site for free op-ed space in the Post to express his anti-choice messages made his a sort of commercial use that was, therefore, subject to Lanham Act and ACPA proscription.

Indeed, the district court ordered that Purdy turn over the domain name my-washingtonpost.com to the Washington Post — though it looks like Purdy tried to ignore this. Looking over historical whois records, it appears that the domain, after originally being registered in 2002, changed hands on January 2, 2003. Based on the timeline laid out by the Appeals Court (and the fact that there was a contempt hearing a few weeks after this), it may be that the Washington Post used the initial court order to get the domain registrar to transfer it (rather than have Purdy willingly hand it over). From the appeals court ruling:

The plaintiffs also moved on October 1 for an order to show cause why Purdy should not be held in contempt for violating the earlier preliminary injunction.   The district court appointed a public defender to represent Purdy for purposes of the contempt motion, and a hearing was held on it in January 2003.   The court found that Purdy still had not brought himself into compliance with its injunction and issued an order on January 28, 2003 finding him in contempt.   The court listed more than 60 domain names that it found he had registered and/or used in violation of its original injunction.5  It again ordered Purdy immediately to cease using the listed domain names and to transfer the names to the rightful owners within three days.   Purdy was also ordered to pay plaintiffs $ 500 per day from the date of the order until he complied and to pay their fees, costs, and expenses.

The next week a status conference was held to assess Purdy’s compliance with the January 28 contempt order.   At that time Purdy was still using many domain names that had been specifically found to violate the court’s injunctions.   Although the plaintiffs had succeeded in forcing the transfer of many domain names registered in the United States, some registered in France had apparently not been transferred and were still linked to content of his choice.

So that suggests that the January 3, 2002 transfer of the domain was from Purdy to the Washington Post (though, not done willingly by Purdy, despite the court order). Looking at the Internet Archive, it is clear that the Washington Post did literally nothing with this domain once it had it in its possession. And, again, looking at the historical record, the Washington Post appears to have let the registration on this domain lapse on August 1, 2006, at which point its DNS pointed to “expireddomainservices.com” which is likely a service to scoop up expired domain names to see if someone wants to pay up to get them back. On January 1, 2007, all domain name servers were removed from the domain… until January 13 of this year, when the domain was registered once again and put to use for this particular parody.

So, perhaps the Washington Post’s claims back in the day about how important it was that this domain be handed over to it for its own use were not entirely truthful at the time. Shocking.

It certainly would be interesting from the standpoint of an observer, if there were a second legal fight over a parody Washington Post news story using the exact same domain. Of course, this time around, the Washington Post would likely need to explain why (among other problems with its claims), after apparently owning that particular domain for nearly four years, it let it go.

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Fashion Designer Balenciaga Opposes Parody Pet-Wear Maker’s Trademark Application For ‘Pawlenciaga’

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Everyone who knows me knows I love two things more than anything in this world: animals… and puns. And, to my delight, much of the pet industry considers using puns as something of a religion. You’ve all seen this, with groan-worthy names of pet stores, doggie daycares, and treat makers. And because the world simply can’t be a fun place in which to exist, sometimes these punny names cause intellectual property disputes, such as when the Prosecco people managed to oppose a trademark for a pet treat named “Pawsecco”, or when a real-life human being hotel called the Chateau Marmont sent a cease and desist notice to the Cateau Marmont, a hotel for, I don’t know… raccoons?

And now one fashion designer has decided to oppose the trademark for a maker of parody pet clothing, arguing ostensibly that the public both cannot tell the difference between human clothes and pet clothes, as well as that this same public doesn’t have a sense of humor.

While Demna Gvasalia has been preparing for Balenciaga’s Spring/Summer 2019 runway show, the brand’s legal team has been readying for a fight. Counsel for the Paris-based brand moved to oppose a pending U.S. trademark application for registration this week, taking issue with “Pawlenciaga,” a trademark that is being used by Pawmain Pets, a North Carolina-based company in the business of making what it calls “parody streetwear for your pets.”

According to the opposition that Balenciaga filed on Monday, Pawmain Pets’ “Pawlenciaga” trademark – if registered for use on leather goods, as Pawmain has proposed – “will cause confusion, mistake and deception with respect to those goods, by virtue of [Balenciaga’s] prior registration, use and fame of its Balenciaga trademarks, including [on leather goods].” Moreover, Balenciaga alleges that Pawmain’s proposed registration “would substantially harm [Balenciaga]” and “is likely to cause confusion” with Balenciaga’s trademark rights, which date back to at least 1975.

It’s quite a bold argument for a high-end fashion designer to insist that a puntastic name is all that’s needed to confuse the public between its goods and those made for animals. One would think that the quality of the product might do some work to stave off such confusion, but apparently not. Still, the average buyer of pet-goods, particularly such luxury items as pet clothing, will be well-acquainted with the long and glorious tradition of puns and parody in the pet industries. It seems laughably unlikely that anyone is actually going to be confused as to the product source or association.

Now, while the USPTO has apparently never upheld a parody defense to a trademark opposition, though that defense has obviously been used a zillion times once lawsuits have been filed, it seems there is already some caselaw on the books that the USPTO might turn to as particularly relevant.

The legally-minded amongst us will already be thinking of a similar matter that precedes Balenciaga’s opposition: Louis Vuitton v. Haute Diggity Dog. In that case, Louis Vuitton sued the pets-wear company, alleging that ones of its handbag-shaped dog toys, one that was labeled “Chewy Vuiton” and that was similar in shape, monogram (“CV” vs. “LV”), repetitious design and coloring to a Louis Vuitton Speedy bag, ran afoul of trademark and copyright law. The Fourth Circuit Court of Appeals handed Haute Diggity Dog a win in 2007, holding that despite Louis Vuitton’s claims of trademark infringement and dilution and copyright infringement, Haute Diggity Dog could continue to make and sell plush dog toys that make use of famous luxury trademarks, as “Haute Diggity Dog’s parody is successful.”  

That kind of makes this pretty straightforward, as it’s the exact same subject matter and industries participating in this opposition. Whether the USPTO will bother to look to that case to inform its decision is an open question. What isn’t an open question is that there was obviously no reason for Balenciaga to do this. There were plenty of other routes to take, including simply ignoring this whole thing while noting that there was little concern for customer confusion. Why it chose to go the bullying route is a question that needs to be put to the designer.

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