Hillary Clinton PAC Sends Bogus Takedowns Over Parodies On Zazzle And CafePress

from the where-does-hillary-stand-on-parody? dept

Tue, Jun 10th 2014 7:41am — Mike Masnick

Not this again. We've noted many times in the past that the two popular "print on demand" t-shirt/merchandise operations online, CafePress and Zazzle, too frequently seem to quickly take down content based on bogus legal threats. Last year, after Zazzle caved in to threats from Homeland Security and the NSA over parody logos, a lawsuit was filed by Dan McCall, whose designs were taken down. The geniuses in the US government realized they were in trouble and admitted that there is no violation in parody logos.

You would think, therefore, that when these sites received demands to take down more designs posted by McCall, they'd think twice. But no such luck. Both Zazzle and CafePress took down the following design that McCall had posted:

Even more ridiculously, at first neither site would tell him why or even who complained (Zazzle eventually did, but refused to say what the legal reasoning was, citing non-existent "confidentiality"). But it wasn't too difficult to guess.

That's the design for Ready For Hillary, a political action committee (PAC) that is obviously working on the pre-campaign for Hillary Clinton's all-but-certain run for the President in 2016. Following a request for more information, both CafePress and Zazzle appeared to take a rather generic form-letter approach to the situation.

Thankfully, Paul Alan Levy from Public Citizen (again, who has represented us in the past as well) has sent one of his masterful demand letters to Ready For Hillary explaining to the PAC why this situation is ridiculous, why it has no legitimate claim for a takedown, and giving the PAC three days to retract the takedowns or face a legal action for declaratory judgment of non-infringement -- including seeking damages for lost sales and attorneys fees for frivolous takedowns.

The communications from Zazzle and CafePress do not reveal whether your client's claims are based on copyright or trademark; Ready for Hillary could have threatened these companies with either to take advantage of the fact that, although 47 U.S.C. § 230 generally gives providers of interactive web sites statutory immunity for content provided by another, the immunity does not apply to intellectual property claims. However, the difference does not matter, because in either case McCall's use is plainly parody. McCall uses the "I'm Ready for" words and design derisively, replacing the word "Hillary" with the word "oligarchy." This is a reference, in part, to the recent discussion of the increasing tendency of American politics to reflect rule by oligarchy, rather than by true democracy, as reflected in a recent paper by Martin Gilens and Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens. The parody refers more specifically to the prospect that the 2016 presidential election may be a contest between a member of the Clinton family and a member of the Bush family. Nobody could possibly look at McCall's design and think that it is sponsored by your committee or, indeed, by its candidate, so there is no actionable likelihood of confusion. Moreover, even assuming that you had a registered copyright in the Ready for Hillary design, McCall's product represents non-commercial commentary on the copyright holder and cannot possibly interfere with sale of the copyrighted work.

Moreover, critical speech directed at a candidate for president is squarely protected by the First Amendment, hence any application of trademark law to quash such uses is highly suspect. Although McCall's products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection....

The staff of Ready for Hillary should know better than to send frivolous takedown demands like these. We would, however, prefer to resolve this controversy without litigation. We are, therefore, giving Ready for Hillary three days to retract its takedown demand. Absent a retraction, we will file an action for a declaratory judgment of non-infringement, seeking damages for lost sales and an award of attorney fees for the issuance of a frivolous takedowns.

Levy, in the blog post linked above, also has harsh words for Zazzle and CafePress for caving to the takedown demand:

Although Ready for Hillary bears the main responsibility for the takedown, the spineless response from Zazzle and CafePress is disappointing – both companies removed the design without any apparent consideration for the rights of its customers to comment on prominent political figures through parody. When McCall asked for an explanation, both companies responded with generalities (here are the emails from Zazzle and CafePress). The companies' unwillingness to provide copies of Ready for Hillary’s actual takedown demands prevented McCall from focusing his arguments on the PAC’s actual claims. CafePress simply ignored a request for a copy; Zazzle outright refused on the ground that takedown communications are “confidential” (because caving in to frivolous takedowns is so embarrassing?).

In past years, we have found CafePress to be tougher in its responses to foolish trademark claims, refusing to remove designs and going so far as to bring its own declaratory judgment action against the Republican National Committee when it persisted in claiming that designs using its elephant logo to comment for or against various candidates in the primary, and for or against the Republican Party itself, violated its trademark rights. That both companies have been so supine in their responses to takedown demands as we begin the 2016 presidential election season is a discouraging sign for the vitality of free debate about the major candidates.

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Filed Under: copyright, dan mccall, free speech, hillary clinton, pac, parody, paul alan levy, ready for hillary, ready for oligarchy, takedowns, trademark
Companies: cafepress, ready for hillary, zazzle

42 Comments

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Michael, 10 Jun 2014 @ 8:01am

Using IP laws to suppress political speech should immediately disqualify a candidate from running in any future campaigns.
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- Lars (profile), 10 Jun 2014 @ 11:10am
  
  Re:
  Well, in fairness, it's a PAC that is supporting her rather than Hillary herself that's doing this.
  
  On the other hand, I distinctly remember Hillary getting up on national TV and openly supporting the ardent anti first amendment crusader Jack Thompson and his war on video games in the name of the children. So it's not like Hillary isn't okay with killing free speech.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Jun 2014 @ 11:54am
  
  Re:
  Agreed, they should also be a convicted felon for doing so. Suppressing political speech is definitely not okay.
  [ link to this | view in chronology ]
Anonymous Coward, 10 Jun 2014 @ 8:01am

In past years, we have found CafePress to be tougher in its responses to foolish trademark claims, refusing to remove designs and going so far as to bring its own declaratory judgment action against the Republican National Committee when it persisted in claiming that designs using its elephant logo to comment for or against various candidates in the primary, and for or against the Republican Party itself, violated its trademark rights.

Oh, come on... You know the rule book is different when it's the Republicans doing it... /s
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Anonymous Coward, 10 Jun 2014 @ 8:02am

Well, thanks to that PAC, I know for certain who I am not voting for. Why would anyone vote for the candidate that is clearly against the 1st amendment.
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- Michael, 10 Jun 2014 @ 8:07am
  
  Re:
  I think we are looking for the person "least against" the 1st amendment.
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  - Anonymous Coward, 10 Jun 2014 @ 8:08am
    
    Re: Re:
    No, I think we're looking for the candidate "least against" the Bill of Rights.
    [ link to this | view in chronology ]
    - Anonymous Coward, 10 Jun 2014 @ 8:28am
      
      Re: Re: Re:
      So we are voting for "least" dictator then?
      [ link to this | view in chronology ]
    - Anonymous Anonymous Coward, 10 Jun 2014 @ 8:30am
      
      Re: Re: Re:
      Is there or will there be one?
      [ link to this | view in chronology ]
    - Anonymous Coward, 10 Jun 2014 @ 8:36am
      
      Re: Re: Re:
      Pff. Bill is gone. He cannot hold anything anymore. And rights are defined by the number of weapons pointing away from you...
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- Baron von Robber, 10 Jun 2014 @ 8:35am
  
  Re:
  And with the DMCA take downs last go around, there's gonna be nobody to vote for. :(
  [ link to this | view in chronology ]
- andrewszombie (profile), 14 Apr 2015 @ 2:21am
  
  Re:
  The first amendment protects you AND the press from persecution or legal action of criticism of any persons currently in Government (in power or opposition).
  
  "LibertyManiacs" isnt a member of the press either, so the first does not apply.
  [ link to this | view in chronology ]
mcinsand, 10 Jun 2014 @ 8:17am

stop trying to pretty it up
Who cares if the top layers are oligarchy, when the foundation is pure kleptocracy?
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Anonymous Coward, 10 Jun 2014 @ 8:24am

I'm buying Zazzle some kneepads
After all, they spend so much time on their knees "servicing" these bullshit takedown requests that I'm sure by now they must be getting raw and irritated.

That's just for now, though. I'm going to save up and see if I can't afford to send them a spine or two for Christmas.
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Anonymous Coward, 10 Jun 2014 @ 8:24am

It's more like, "ready for rear".
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mcinsand, 10 Jun 2014 @ 8:25am

Looking Weak
Nothing makes a group look weaker and wimpier than a thin skin.
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malund66 (profile), 10 Jun 2014 @ 8:39am

Oh the irony ..
You can still buy this one at zazzle:

http://www.zazzle.com/vote_oligarchy_hillary_2016_stickers_bumper_sticker-128843547368417409

T his one was inked by a right winger. Guess it's only the dems that are in the oligarchy business.

Michael
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- Anonymous Coward, 10 Jun 2014 @ 9:05am
  
  Re: Oh the irony ..
  Oligarchy is not a left or right issue. This is a pure corruption issue, left or right is the same on this one.
  
  It is each political individuals own resistance to corruption that makes the difference, not party. Thinking this way is what makes you a bad voter.
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  - Anonymous Coward, 10 Jun 2014 @ 2:03pm
    
    Re: Re: Oh the irony ..
    Someone needs to make a new shirt with the Dem and Rep ones BOTH on it.
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Anonymous Coward, 10 Jun 2014 @ 8:58am

Poe's Law
I'd sort of like to buy one of those t-shirts, but I'm afraid people would think I was being serious.
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- Anonymous Coward, 10 Jun 2014 @ 9:00am
  
  Re: Poe's Law
  I suspect anyone that might think you were being serious would first need to have the definition of oligarchy explained to them.
  [ link to this | view in chronology ]
Stuart (profile), 10 Jun 2014 @ 9:18am

Hmm
So When Hillary sends crazy stupid demand they fold intermediately. When the Republicans did the same they fought it. And our first thought is that it is a change from the old election to the new? I think not. I think the difference is just political.
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Anonymous Coward, 10 Jun 2014 @ 9:44am

I want to order that shirt! The only thing that could make it better, is if it said plutocracy instead of oligarchy. I think plutocracy is more politically correct.
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- Digital Droid, 10 Jun 2014 @ 2:37pm
  
  Re:
  While both terms can be used here, I think oligarchy is the better option. It's technically a correct term and it's more recognizable. I doubt most people know what a plutocracy is.
  [ link to this | view in chronology ]
  - John Fenderson (profile), 10 Jun 2014 @ 7:00pm
    
    Re: Re:
    Plutocracy is when Mickey's dog is running the show, right?
    [ link to this | view in chronology ]
    - Anonymous Coward, 10 Jun 2014 @ 7:36pm
      
      Re: Re: Re:
      I'm pretty certain dogs are already running the show...
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Anonymous Coward, 10 Jun 2014 @ 9:51am

Gotta love it
I will now be purchasing something I didnt even know I wanted till they tried to take it away from me.

Anyone else notice how fast the rats scurry for cover when a single engine cessna flies nearby?

Our leadership = Cowards
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Anonymous Coward, 10 Jun 2014 @ 10:07am

"Supine" is my new favorite word.
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andypandy, 10 Jun 2014 @ 10:18am

Fact not Parody
Seriously if it is an Oligarchy then there is no reason not to advertise it as such, and the government is most definitely an Oligarchy, if it tastes like oil it probably is oil
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Mason Wheeler (profile), 10 Jun 2014 @ 10:29am

takedown communications are �confidential�

So with extrajudicial law enforcement, not only do you have no due process and no presumption of innocence, you have no right to face your accusers or to know the charge against you.

But the DMCA takedown system has done such a good job of protecting the Internet... right?
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- Anonymous Coward, 10 Jun 2014 @ 11:01am
  
  Re:
  Except that the takedown communications aren't actually confidential. You can't declare that an unsolicited letter must be kept private, at least not unless you've got an actual court order or NSL or something to back it up.
  
  Either the lawyers falsely claimed confidentiality in their letter and Zazzle believed them... or Zazzle has picked a political side and is trying to give them as much cover as possible. But if the lawsuit goes through, it will almost certainly come out in discovery.
  [ link to this | view in chronology ]
  - Stuart (profile), 10 Jun 2014 @ 11:38am
    
    Re: Re:
    I am telling you I have a real suspicion that the change in behavior is political.
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  - John Fenderson (profile), 10 Jun 2014 @ 7:02pm
    
    Re: Re:
    "You can't declare that an unsolicited letter must be kept private"
    
    Well, you can declare it all you want (my employer requires such a declaration in all emails). It simply carries no legal weight.
    [ link to this | view in chronology ]
TasMot (profile), 10 Jun 2014 @ 10:45am

Can we start a new thing
I'm not an artist and I can't do this, but would the artistic types who read this please sign on to CafePress and Zazzle, open an account and upload some "I'm Ready For 'XXXX'" items. Keep changing the XXXX to something new and different. Let's see how many C&D's we can get out of the PAC!
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Anonymous Coward, 10 Jun 2014 @ 11:58am

Presumptious
It'd be funny if Hillary ends up getting snubbed again in the primaries. Because really, we can do better than her.
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PRMan, 10 Jun 2014 @ 11:59am

Third party
If we DO end up with Clinton vs. Bush, a third party candidate has a really good chance of winning in my opinion.
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Anonymous Coward, 10 Jun 2014 @ 1:42pm

Too much truth for them, eh?
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wallyb132 (profile), 10 Jun 2014 @ 3:38pm

I love it
Not only does Paul Alan Levy smack down Hillary's PAC but when hes done with them, he turns and aims his smack down hand at Cafe Press and Zazzle, I fucking love it, particularly the spineless part...

I tip my hat at all of the attorney's who stand up for the little guys and for whats right, especially when it comes to abusive IP practices:

Paul Alan Levy
Marc Randazza
Morgan Pietz
Nick Ranallo
Ken White

And all the others from the EFF, Public Citizen, EPIC and the Center for Democracy and Technology, and others.
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Anonymous Coward, 10 Jun 2014 @ 6:50pm

Coin a new term, Hilleried - When a politician abuses copyright or trademark law to suppress lawful political or parody speech.
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- Anonymous Coward, 10 Jun 2014 @ 7:07pm
  
  Re:
  Example: I have this button because the other swag was hilleried.
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  - Anonymous Coward, 10 Jun 2014 @ 10:37pm
    
    Re: Re:
    Hillari-tee
    
    I bought this shirt in support of Hillari-tee.
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    - Anonymous Coward, 11 Jun 2014 @ 6:04am
      
      Re: Re: Re:
      The Hillary PAC shuts down political speech and...
      
      ...You go Girl!
      
      Really? Goo... ...ood for y... ...ou.?.
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