Chamber Of Commerce Uses DMCA Claim Against Yes Men Prank Site

from the this-won't-end-well dept

Fri, Oct 23rd 2009 4:47am — Mike Masnick

There was a lot of news a few days back when notorious pranksters, Yes Men, set up a fake press conference pretending to be the US Chamber of Commerce, announcing that it had changed its controversial stance on climate change -- which had recently driven some large companies, including PG&E and Apple, to leave the CoC. The fake press conference, along with a fake website and fake press release, apparently fooled some in the media -- including Reuters -- until someone from the real Chamber of Commerce burst into the room and confronted the pranksters. The video is great:

Part of the hoax was a fake website at www.chamber-of-commerce.us, and apparently the real Chamber of Commerce has sent a DMCA takedown on the site. The EFF is responding in support of Yes Men, saying that the site is a parody, which is protected fair use. While I think that the Chamber of Commerce is pretty dumb to issue the takedown -- only giving the Yes Men more attention -- I'm not sure that the parody defense will stick here. While the site is for the purpose of criticism, the site is most certainly not an obvious parody. It's designed to look real. Thus, the bigger issue may actually be trademark infringement, not copyright infringement, as the site could certainly confuse users, but there are other ways to deal with such things that don't involve a DMCA takedown.

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Filed Under: copyright, dmca, parody, prank, yes men
Companies: chamber of commerce, eff, yes men

46 Comments

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Ima Fish (profile), 23 Oct 2009 @ 5:22am

"the site is most certainly not an obvious parody. It's designed to look real"

Agreed, the purpose of the site was to deceive people into thinking it was really the Chamber of Commerce. Most satire/parody is a balance. You let the audience know who you're ridiculing just enough to not completely copy who you're ridiculing.

I also agree that any trademark claim is much stronger than any copyright claim. What exactly is their copyright claim? It appears they're using the DMCA because it would be faster than a traditional trademark lawsuit.
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trench0r (profile), 23 Oct 2009 @ 5:24am

Calls to reporters? FREE
Renting the space? $500
That guy who bursts in? PRICELESS!!
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Andrew (profile), 23 Oct 2009 @ 6:35am

A new "test"?
"the site is most certainly not an obvious parody. It's designed to look real"
Does that mean we have to change to a "moron in a hurry with no sense of humor" test?
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Ima Fish (profile), 23 Oct 2009 @ 6:48am

Re: A new "test"?
Maybe you're kidding, but there is not "sense of humor" test in trademark. Maybe there should be, but there isn't.

Think of it this way, if Jones soda company started selling cola in a bottle identical in every detail to Coke's bottle, with the expressed intent of tricking people into thinking it was really Coke, could the owners of Jones soda get away with it because, "Hey it was a joke, we were only kidding. God, get a sense of humor dudes!"

No, they could not.
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Dark Helmet (profile), 23 Oct 2009 @ 7:02am

I think you're all missing the truly sad point...
...which is that our government is fucked up on such a scale that this ridiculous prank was BELIEVABLE.
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Marcus Carab (profile), 23 Oct 2009 @ 7:07am

A newspaper in my home city of Toronto is running an infuriatingly ridiculous article about this. They repeatedly call out the "Twitter era" of news as the reason such a thing happened, despite it being old, mainstream organizations who got this false story out. So despite admitting:

"The dramatic reversal was conveyed instantly, led by the Reuters agency, and minutes later it was picked up by The New York Times and The Washington Post websites."

...a few paragraphs later, they call the incident "a cardinal lesson in the dangers of the tweet-first-ask-questions-later pace of modern news", and the subhead to the article is: "Bogus presser shows that in Twitter era 'you've got to be suspicious of just about everything'"

I'm sorry, who "tweeted first and asked questions later"? Reuters? The mainstream media dropped the ball on this one, and now they are shamelessly trying to make it sound like its the fault of the internet with all it's untrustworthy tweets? Boils my blood! Then their Syracuse media expert says this:

"It is almost to the point that if you don't recognize the figure on stage you must assume they are not legitimate. But what do you do, use your hand-held technology to look online for a picture of the man? Maybe that is the next step in combatting nefarious acts."

Is he trying to make that sound like a bad thing and a nuisance? Sounds damn awesome to me, that our reporters will have a resource in their pockets that let them confirm facts instantly. The media is so ridiculously out of touch that it hurts.
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JJ (profile), 23 Oct 2009 @ 7:14am

The website, like the press conference, is designed to confuse people, but only temporarily. This is where it differs fundamentally from the material that trademark law is designed to prevent -- the Yes Men WANT to be found out. That's how they get their message out. It doesn't do them any good to really trick people into thinking that the Chamber of Commerce has changed its stance on climate change; they want people to believe it only long enough to be outraged when they discover that the real Chamber hasn't actually done anything at all.

There's nothing in law to indicate whether this sort of use of trademarks is (or should be) protected, and (not that I'm a lawyer, but) I know of no case law on the subject.
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Anonymous Coward, 23 Oct 2009 @ 7:18am

I would say that this would potentially be a case for the police, even the feds, as it apprears to be an attempted fraud, not just a prank.
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Anonymous Coward, 23 Oct 2009 @ 7:27am

"announcing that it had changed its controversial stance on climate change -- which had recently driven some large companies, including PG&E and Apple, to leave the CoC."

I find the potential implication that the CoC, to some degree, bases its position on which companies would support it and which ones won't. Makes you wonder if its position is really driven by what's best for the environment or what's best for big corporations. and if it's the later then what are the true environmental implications of that? Is that going to negatively harm the environment?
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Free Capitalist (profile), 23 Oct 2009 @ 7:33am

Re:
Makes you wonder if its position is really driven by what's best for the environment or what's best for big corporations.

Well, this is the Chamber of Commerce we're talking about.
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Anonymous Coward, 23 Oct 2009 @ 7:34am

Re: I think you're all missing the truly sad point...
DH, while I normally agree with your posts, in this instance I feel it necessary to point out that the Chamber of Commerce is NOT part of the government. It is a commercial organization whose supposed purpose is to promote US businesses. While it may have some ties to the government, it is not actually a part of it.
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Dark Helmet (profile), 23 Oct 2009 @ 7:37am

Re: Re: I think you're all missing the truly sad point...
Dammit, you're completely correct. Chalk that one up to my swearing off of caffeine/coffee recently....
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Anonymous Coward, 23 Oct 2009 @ 7:40am

Re:
'I find the potential implication that the CoC, to some degree, bases its position on which companies would support it and which ones won't.'

You find the potential implication... what? You didn't finish your thought, here.
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Free Capitalist (profile), 23 Oct 2009 @ 8:01am

Re: Re: Re: I think you're all missing the truly sad point...
Facts should never get in the way of a perfectly good conspiracy theory. Fight fire with Perriair!
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Anonymous Coward, 23 Oct 2009 @ 8:17am

Re: Re:
What? I did finish my thought.
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Anonymous Coward, 23 Oct 2009 @ 8:19am

Re: Re:
I find the potential implication that the CoC, to some degree, bases its position on which companies would support it and which ones won't disturbing.
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Sean T Henry (profile), 23 Oct 2009 @ 8:26am

Re:
At least the Chamber of Commerce did not think they were being stalked by there British friend from Toyota.
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Valkor, 23 Oct 2009 @ 8:28am

Re: Re: Re:
Thank you.
And in reply to that, I'll assert that the CoC, just like *every* other lobbying organization, should be treated with suspicion and an assumption of some ulterior motive. That's what lobbying groups are for.
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Eliot, 23 Oct 2009 @ 8:28am

Daily Show
Oh, god. That's horrible and awesome. The John Stewart is going to have a Hay Day with this one.
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Dark Helmet (profile), 23 Oct 2009 @ 8:37am

Re: Re: Re: Re: I think you're all missing the truly sad point...
Oh come ON! That wasn't even a conspiracy theory. Although if you like I can probably get creative and come up with a fun one (did you know that the folks at Kraft Foods came up with aerosol Cheez Whiz in order to immobilize gun toting rednecks with coronary problems so that they launch their supprise cheesy coup?)
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Christopher (profile), 23 Oct 2009 @ 8:46am

Re: Re: A new "test"?
It's not even the same thing. Yes Men did not take on the actions of the CoC, they just crafted a very subtle parody. Why must a parody be overtly obvious in order to be a parody?

No real case here.
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Anonymous1, 23 Oct 2009 @ 9:27am

just crafted a very subtle parody..

@Christopher: L-O-L. So subtle that no one got it huh?

At best that's poor work on their part, at worst it's attempted deception. Sorry. Your argument doesn't pass the smell test...
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Anonymous1, 23 Oct 2009 @ 9:36am

@Christopher: Your comment was tounge-in-cheek right?

BTW, In case you were not from "thefreedictionary.com":

literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. See Synonyms at caricature.
b. The genre of literature comprising such works.
2. Something so bad as to be equivalent to intentional mockery; a travesty

This wasn't over the top. The wasn't designed to be so BAD as to be a mockery. While parody can contain some subtlety, the news conference was a veneer over their true intentions. I have no doubt this group uses parody. These actions, IMO, cross the line.This wasn't an example. The intent was apparent deception, and then, kowing they would be discovered, publicity. Publicity stunt, with questionable tactics? YES.
Parody? NO.
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Free Capitalist (profile), 23 Oct 2009 @ 9:37am

Re: Re: Re: Re: Re: I think you're all missing the truly sad point...
Ha!

Vivre la Fromage du Perriair!
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Anonymous Coward, 23 Oct 2009 @ 10:20am

Parody
The DMCA takedown is groundless. It's a parody. If journalism wasn't in the sad state that it is, it would have been reported as such after a little fact checking.

Regarding the subject matter, hasn't anyone else found it a little suspect that the environmentalists (environmentalist != scientist) and "research" teams that rely on government funding to stay in business have latched on to something so historically variable and multifaceted as climate, and therefore unpredictable, to spread fear of doomsday scenarios only to drum up more funding?
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Anonymous1, 23 Oct 2009 @ 10:38am

@AC: The DMCA takedown is groundless. It's a parody.

According to your definition of parody which doesn't fit the dictionary OR normal usage. The intent is key. While hoaxes may contain elements of parodies, (see above) they are not synonymous.The key purpose was disruptive publicity. This doesn't automatically equate parody. You're more than free to redefine a term to meet your needs (defense of a political view), it just won't be taken as credible by the majority of people. If they had been FUNNY that might actually get people to ignore their tactics. This type of thing pushes them to the fringe. Yes they got publicity, but it only feeds their base. BTW, Giving a reason, as opposed to stating something as fact, without citation, might be a good place to start....
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Anonymous Coward, 23 Oct 2009 @ 10:59am

Re:
I'd argue that it was a parody done for ridicule. That does not mean it has to be humorous. The Yes Men are clearly ridiculing the CoC's stance. It doesn't necessarily have to be done in the Saturday Night Live style which is over the top and makes use of well known actors portraying the objects of ridicule, while attempting to be funny. It is unfortunate that so many were mislead by it, but that doesn't mean it's criminal copyright violation.
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ChimpBush McHitlerBurton, 23 Oct 2009 @ 11:00am

Re: Re: A new "test"?
I believe there is an issue of "trade" when it comes to trademark infringement isn't there?

The Yes Men aren't selling anything more than ideas, and they aren't receiving *any* money for their efforts as far as I can tell. In fact this whole escapade puts them in the hole for at least the meeting space rental and the cost of production for the props.

So "Trademark Infringement"?... Doesn't pass the smell test methinks.

CBMHB
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ChimpBush McHitlerBurton, 23 Oct 2009 @ 11:08am

Re:
"Sounds damn awesome to me, that our reporters will have a resource in their pockets that let them confirm facts instantly."

...I can hardly wait to start generating the bogus "reference" sites that these reporters start turning to in order to "confirm facts"...

(silence)

"HA HA HA HA HA HA HA HA HA HA HA HA HA!"

CBMHB
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Anonymous1, 23 Oct 2009 @ 11:12am

I'd argue that it was a parody done for ridicule.

You can argue that for the actions in the news conference, but that view falls apart quite a bit, IMO, when taking into account the web site. At a certain point, you cross the line into trying to misrepresent someone's point of view, or stance. Again, "muddying the waters" to dilute the effect of the CoC may be a political tactic, but it isn't parody, by common usage or otherwise.
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ChimpBush McHitlerBurton, 23 Oct 2009 @ 11:23am

Re:
Again, I think the point is being missed here.

"Fraud" is done for a purpose, almost always financial profit, or at least ending up there if not starting there.

The Yes Men are a Prank Organization by definition, if there is one. They are seeking discourse on matters of public interest and using subterfuge and sarcasm to get their points across.

The targets may not like it. Even the reporters duped by the process may not like it, but it is not legal "fraud", and the police have real crimes to pursue. Calling them would be a complete waste of time, and most likely out of their jurisdiction.

The interesting side note here? Not only is the USCoC working against the environment in favor of big business - that point was already made by the Yes Men - but along the way we are introduced to the gullibility of the media. That was fun for a few yuks too.

CBMHB
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Anonymous Coward, 23 Oct 2009 @ 11:28am

The site has real live links back to the real Chamber of Commerce web site. I was laughing out loud then I looked at the URL and realized I was no longer on the Prank site... I guess the real site is just as funny!
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ChimpBush McHitlerBurton, 23 Oct 2009 @ 11:31am

Re: Re: Re: Re:
"...the CoC, just like *every* other lobbying organization, should be treated with suspicion and an assumption of some ulterior motive..."

Aha! *here* is our "fraud". Some group, purporting to stand behind a certain set of principles in order to get support for a conflicting *hidden* agenda, which ultimately benefits them financially at the expense of the American public.

Call the feds!

CBMHB
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Anonymous Coward, 23 Oct 2009 @ 11:33am

Re: Re: Re:
...it's just that my thought didn't have a point. But I finished it.
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Anonymous Coward, 23 Oct 2009 @ 11:36am

Re: Daily Show
Yes. THE John Stewart will.

I just hope the Fake John Stewart keeps his distance. We don't need to hear from that pud-puller.
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ChimpBush McHitlerBurton, 23 Oct 2009 @ 11:46am

Re:
I think you're splitting hairs, and yet even with half a hair, you're still mistaken.

Look at the def's you posted:

1) "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule."

Pass

2) "Something so bad as to be equivalent to intentional mockery; a travesty"

Pass

The reality is, the Yes Men do what they do with the *full intention* of being found out. That *makes* it a parody, a travesty, mockery, comedy, irony, you name it.

Who ever said that a publicity stunt with questionable tactics can't be parody? It can.

CBMHB
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Dark Helmet (profile), 23 Oct 2009 @ 11:52am

Re: Re:
"(silence)

"HA HA HA HA HA HA HA HA HA HA HA HA HA!""

...Classic!
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Matt (profile), 23 Oct 2009 @ 12:03pm

Re: Re: Re: A new "test"?
Get your nose checked. Among other things, "US Chamber of Commerce" is self-evidently a famous mark. Thus, this dilution and disparagement falls over the line.

In any event, the test is not whether the infringer is succesful in generating money for themselves, it is whether they interfere with the TM owner's ability to participate in commerce (even in a manner that leads to no monetary gain).

This is not a "subtle" parody. It does not parody - it does not make something the Chamber is doing funny. It does not make fun of something the Chamber is doing. Instead, it is an attempt by someone who disagrees with the Chamber's view (as any rational person would) to impose their view on the Chamber. That is not cool, and definitely not funny.
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Matt (profile), 23 Oct 2009 @ 12:15pm

Re: Re:
No definition of parody includes acts intended to deceive or acts reasonably likely to deceive. This was apparently intended to deceive, and certainly it was reasonably likely to deceive. No parody defense here. Move along.
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ChimpBush McHitlerBurton, 23 Oct 2009 @ 12:40pm

Re: Re: Re: Re: A new "test"?
Hmm. Well Matt, I'll take your suggestion under advisement. I *am* just getting over a nasty cold so perhaps you have a point. However:

"US Chamber of Commerce" may evidently be a famous mark upon examination and research, but it is not self-evidently so, any more than "US Trade and Import Commission" is self-evidently famous, which I just made up.

"dilution" is the weakening of a mark through its overuse. I don't think that using it for one day in this parody-stunt qualifies.

"disparagement" is an interesting term, but your use overlooks the operative concept within it, that one has to issue falsehoods or misrepresentations of the holders mark in order to qualify. In this case, The Yes Men have done nothing more than point out what the USCoC has already maintained: That they are not changing their position on climate change. In this way, by your understanding the USCoC has "disparaged" their *own* mark. Of course they haven't, but your use of the word forces the comparison.

You are right, the test is not whether the "infringer" is *successful* in generating money. Part is whether they *intended* to make money. The other part is indeed whether they interfere with the TM owner's ability to participate in commerce - Which it would be very difficult to prove they have done to the USCoC. Very difficult.

The fact that you can not appreciate the subtlety of this parody does not make it any less subtle. I appreciated it immediately as many others did. Further, the fact that you did not find it funny also has no bearing on its "funnyness". I found it terribly amusing, as many others did.

In a court of law, they will never bother themselves with subjective terms like "subtle", "funny", or "cool", so your observations - however interesting - don't and won't make law, and won't worry The Yes Men or any other parody-provocateurs.

You might want to get *your* nose checked. It seems bent out of shape.

CBMHB
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ChimpBush McHitlerBurton, 23 Oct 2009 @ 1:04pm

Re: Re: Re:
The problem you are going to have is that you personally have decided the Yes Men's intent. Further, few definitions of a word are likely to include "reasonably likely to..." anything.

It may be apparent to *you* that they intended to deceive, and perhaps they did, for a short period of time, like 20 or 30 minutes. But they then certainly intended to un-deceive the very same people by doing what they always do.

But for the purpose of this discussion, if I am standing in front of a group of people and I say, "Hey everybody, I'm Matt, and I'm a total douche!"...If someone *believes* that I'm you, if even only for a moment...Have I committed "fraud"?

I mean, I may be guilty of *disparagement* if in fact you are not a total douche, but I think we all know that's up for debate.

CBMHB
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Anonymous1, 23 Oct 2009 @ 1:16pm

@CBMHB :
literary or artistic work that imitates the characteristic style of an author or a work...

What author or work does the CoC represent? Again, the website makes the performance art angle weak. You're simply ignoring points now, not actively countering them.

Something so bad..

Again, the news conference was not done with any air of irony or parody. It was presented as a straightforward factual event. That violates even the spirit of parody, and then of course, you again ignore the attempt to delude CoC's message, again, not generally part of parody.

For the final time, intention to be discovered makes it a tactic with a purpose, but not parody per se. Then again, I am dealing with a plainly partisan ideolouge (as your pathetic and factually incorrect handle makes clear). While I'm sure your fellow partisans may appluad this, but that doesn't make you correct. That's not ad hominem, it's an argument based on the lack of logic of your stance. I also love your own hypocritical ad hominem attack because Matt got under your skin...LOL.
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Rabbit80, 23 Oct 2009 @ 1:46pm

Has the chamber actually confirmed that their man was "real"?

Perhaps the whole thing was scripted?
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Anonymous Coward, 23 Oct 2009 @ 2:10pm

Re:
I'd go along with the trademark claim before the copyright claim. What did the fake site copy, except for the layout and design of the website and use of the CoC logo? I'm not exonerating the Yes Men, but I think if they are guilty of anything, it should be pursued in accordance with the law. Muddying the waters in this manner is certainly a political and nasty trick, but in what way, if any, is it illegal?

Referring to the Coke bottle concept, if I were to refill Coke bottles with coffee and give them away, would that be illegal? Am I gaining anything other than a good laugh at the expense of those who drank it up? Now if the Yes Men are profiting from the website, and they may be, in my opinion that crosses a boundary due to the use of the trademarks.
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Fred McTaker (profile), 23 Oct 2009 @ 7:09pm

Re: Parody
@AC: I hope that was your own poor attempt at parody. Not all environmentalists are scientists, but most real scientists are environmentalists, as they have discovered through peer-reviewed empirical study that the planet Earth's environment is very important to little things like human health. They have also managed to perform analysis of earth's features, like polar ice cores, upper atmosphere sampling, and general climate status sampling, that prove the Earth's oceans are currently both warmer and more acidic (due to carbon dioxide absorption) than all recorded or scientifically-estimable history.

I know you can't see all that evidence from your Cheeto-stained couch, especially while you have the AC on. Try reading a real science journal or paper sometime, rather than that Intelligent Design book you spilled your beer on.
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Anonymous Coward, 28 Oct 2009 @ 3:42pm

Re: Re: Parody
You sure make a lot of assumptions, which also happens to be the problem with the current research on climate change. You're also ignoring the scientifically-estimable history of the earth's temperature, which has cycled through periods that were both hotter and cooler than the human era and the subset industrialized age.

It's also uncertain as to whether increased CO2 causes or correlates with increased temperature. The models assume it's a cause, and that's the basis for all the fears of man-made CO2.

I'm not saying we should pump out CO2 and other gases and particulates willy-nilly and generally trash our environment. We need to be good stewards of our environment and resources. The problem is pursuing a costly "fix" that will likely not fix the problem of global warming and the possible associated ice melting, ocean level rise, regional climate changes, etc. We'd be more likely to ruin our economy and stagnate the growth and innovation that could help us better adapt to natural climate change before we'd have any significant effect on man's contribution to CO2 levels.

My concern is that the research has often been hijacked or misrepresented for political purposes, and we're not getting complete answers from those in power.
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