NY Times Sends Cease & Desist Letter To Kachingle For Trying To Show Them Alternatives To Paywalls

from the hmm... dept

Back in August, we wrote about two companies Flattr and Kachingle that were trying to create a very easy to use form of micropayments, that do away with the mental transaction costs, as a method of getting people to voluntarily support content they enjoy monetarily. Since then we've been experimenting with Flattr (you can see the widget to the left) and it's been quite interesting, especially since Flattr finally opened its doors to anyone, rather than being invite only, as it was when we first started. We'll have a more complete report about our Flattr experiment sometime soon...

That said, Flattr's competitor, Kachingle (which is similar, but with a few key differences) recently put together an amusing publicity stunt. Knowing that the NY Times paywall is fast approaching, it put together a "Stop the Paywall!" campaign for Kachingle uses, letting them designate which NY Times' columnists they want a piece of their monthly contributions to go to.

It's a pure publicity stunt, and when I saw it announced I wasn't going to write about it. Except... the NY Times and its lawyers have now changed that. While Kachingle leaves out some of the important details, apparently, three people from the NY Times, including the VP of Digital, a lawyer and someone working on the NYT's paywall, called Kachingle, demanding they take down the promotion, saying that it was "annoying" and that it would not stop the paywall. After Kachingle refused, they said they were sending a cease-and-desist letter (which, as of this posting, apparently has not arrived at the Kachingle offices).

In other words, the NY Times just made sure that Kachingle gets a ton more attention for its publicity stunt, and looks like they're simply not open to any alternative business models. I am curious as to the legal reasoning behind the cease-and-desist. I will say that, from the information posted, it is not clearly stated where the money designated for the NY Times' bloggers is actually going, which I would guess may be the legal concern. I guess I could see a trademark claim, in that the NY Times could say that this implies that the NY Times has a business relationship with Kachingle when it does not -- but I think that anyone reading the actual site would immediately recognize that there's clearly no endorsement or relationship with the NY Times. In fact, that's why Kachingle set up the page...

Anyway, if Kachingle ever gets and posts the C&D, we'll be sure to update the post... But, really, what benefit is there to the NY Times in doing this? Threatening Kachingle with legal action seems downright petty and closed minded. Why not let the company run its promotional campaign, see if you learn anything from it, and move on?

Filed Under: cease and desist, donations, micropayments, paywalls
Companies: kachingle, ny times

Pillsbury Sends Cease & Desist To 'Dough Girl' Bakery

from the a-recipe-for-doughy-disaaster dept

Another day, another story of a questionable trademark nastygram from a big corporation against a small business. The latest involves baked goods giant Pillsbury (a part of food conglomerate General Mills), who apparently took offense to a small Salt Lake City bakery called "My Dough Girl" and sent a cease & desist. Honestly, it took me a while to make the connection here. Yes, Pillsbury has the "Pillsbury Dough Boy," but that always seems to include the Pillsbury name. The article claims that the owner of the bakery checked on any "copyright infringement," which might explain the problem... this is a trademark issue, not a copyright one (though, I'm guessing this is just confusion on the part of the bakery owner, the reporter, or both).

Of course, these sorts of stories show up all the time. There were a couple of interesting elements in this one. While no lawsuit was actually filed, the fear that a legal nastygram from a giant firm can engender in a small business becomes clear. The owner of the store was so afraid of a lawsuit, she wouldn't even talk to reporters. It's not clear why talking to a reporter would make the situation any worse, but it does show how fearful a single letter has made this woman. In fact, a different report claims that General Mills' lawyers told her not to talk to the press. That's pretty ridiculous. Whether or not it's smart to talk to the press, she shouldn't be taking orders from General Mills' counsel. Either way, it looks like the bakery immediately capitulated and agreed to change its name, at a cost of $50,000. Ouch.

Even more interesting, though, is the reason this story is getting attention isn't because the bakery is fighting it, but because a bunch of fans of the bakery have used the internet to spread the word about how they really don't appreciate Pillsbury bullying their local bakery, which no one confused with the food giant in the first place. The article above also says that General Mills asked the owner to "kill the Facebook page," even though she didn't create it and has no control over it. In fact, she seems afraid that the Facebook page is making things worse. Still, it's quite a testament to modern technology that this is even possible. Can you imagine patrons of a small business standing up to a giant corporation without the small business' support in the past?

However, all it's really doing is calling a lot more attention to incredible bullying by a company like General Mills against a small company that has a legitimate claim to the name. One of these days, perhaps lawyers will realize that legal bullying leads to backlash, but I guess we still haven't reach that point yet.

Filed Under: bakery, cease and desist
Companies: facebook, general mills, my dough girl, pillsbury

One Way To Deal With A Cease & Desist: Wicked Lasers Auctioning Off LucasFilm C&D

from the will-they-get-a-C&D-for-that-too? dept

We recently wrote about the cease & desist letter that LucasFilm sent Wicked Lasers for making a laser that various blogs (not Wicked Lasers itself) compared to a light saber. Wicked Lasers has apparently responded by doing the only reasonable thing: it's auctioning the cease & desist off on eBay. You can bid on it here. How nice would it be if it became a trend to auction off bogus cease and desist letters?

Filed Under: auctioning, cease and desist
Companies: lucasfilm, wicked lasers

Post Semi-Nude Photos Of Celebs Doing Drugs... Get Hit With C&D That You Can't Show Anyone

from the that's-not-how-it-works... dept

Rose M. Welch points us to the news that the website TheDirty.com was sent a ridiculous cease and desist letter from lawyers representing Tess Taylor (apparently some reality TV personality whom I'd never heard of), after the site posted photos (warning: NSFW) of Taylor topless and partaking of various drugs (apparently both pot and black tar heroin).

Of course, these days you half assume that such stories are planted on purpose to build up the reputations of various desperate b- or c-list celebs. And, of course, claiming that the cease-and-desist is covered by copyright almost guarantees that it will get more attention. This is somewhat standard language on many cease-and-desist letters, but it's unlikely that there is any legal basis for it. There is little creative effort in the cease and desist, which is mostly boilerplate. It's difficult to see much copyright being allowed. Even if there was (and anyone want to bet on whether or not the letter was registered?) it would appear that fair use would allow the publication of the letter, despite the claims that:

This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will construe a breach of confidence and a violation of the U.S. Copyright Act.

Good luck testing that one in court. First of all, even if the letter really was covered by copyright, fair use would almost certainly protect the publication of the whole thing (for the sake of reporting), if not "portions" of it. And the claim of "breach of confidence" is a huge stretch as well. That's usually applied to things like doctor-patient relationships. Arguing that the lawyers for Tess Taylor and the site TheDirty.com have any sort of "confidential" relationship established is beyond ridiculous.

As for the reasoning behind the C&D... that seems to come from similarly questionable legal theory. The lawyers rely on California's "rights of privacy and publicity," but the law in question there was written to protect celebrities from having their images used in advertisements for endorsement purposes. It's a stretch to suggest those same rights apply simply to "photos you don't like... because they're published on a for-profit site." Again, it seems just as likely that the whole ordeal was cooked up for publicity anyway, but it's still annoying to see various laws abused in this manner -- whether the letter represents a real legal threat or is just part of a publicity campaign.

Filed Under: cease and desist, copyright, publicity rights, tess taylor
Companies: thedirty.com

Fake Processors, Passing The Blame, Legal Nastygrams And More...

from the oh-boy dept

Richard Corsale writes in to let us know about how popular electronics e-commerce site NewEgg apparently received 300 totally fake Intel processors and at least some of them were sold. They're not processors at all. They're just made to look like them from the outside. NewEgg's initial response was to claim that its supplier shipped them demo boxes by accident -- but Intel is claiming that's not true, and the boxes are not official Intel demo boxes, but counterfeit demo boxes. Then, to make the story even odder, many publications reported that NewEgg's supplier for these fake processors was a company called D&H -- and D&H's response to all of these stories is to send out legal nastygrams to anyone reporting on the story and mentioning D&H. Perhaps it's worth giving D&H the benefit of the doubt, but why not just come out and say "hey, it wasn't us," and get NewEgg to confirm or deny who provided the fake processors before sending out a legal threat?

Filed Under: blame, cease and desist, fakes, nastygrams, processors
Companies: d&h, intel, newegg

Vevo Doesn't Put Ads In YouTube API, Gets Upset When Music Streaming Startup Uses That Fact

from the umm... dept

I actually had decently high hopes for Vevo, the partnership between Universal Music and YouTube to create a website for official music videos (currently from three of the four major record labels). I mean, I always figured that eventually the labels would screw stuff up, but I thought it actually had a shot at maybe being useful. The fact that Universal put Rio Caraeff in charge seemed like a good sign as well, since Caraeff seemed like the sort of music industry exec who understood the new marketplace for music, and wasn't encumbered with the "old ways" of doing things. But rather than a useful site, Vevo has basically been a cookie cutter version of what you would do if the record labels created their own YouTube. That is, it took none of the good parts of YouTube. Hell, it didn't even take the ability to handle a lot of traffic. For the first few days after it launched, Vevo just didn't work at all.

Its latest screwup was that it didn't include its preroll ads in the YouTube API, meaning that others who used the API could access and repurpose Vevo content without the ads, and even show the content outside the US (which Vevo currently does not allow). It didn't take long for one enterprising startup, Muziic, to do exactly that. Muziic has received some attention for basically using the YouTube API to create an iTunes-like experience out of YouTube videos (it also gets attention for being founded by a 16-year old). Muziic sent out an announcement this week about how it was using the YouTube API to add Vevo content, meaning you could access Vevo videos without the preroll ads and outside the US.

Vevo's first response? To send a cease and desist. At the very least, it wasn't a legal nastygram, but a more friendly cease & desist sent by Caraeff himself. But "cease" what? Muziic was using the API as designed, and even though Caraeff admits that Vevo is quickly scrambling to change the API, he still says Muziic needs to cease from using the Vevo logo or referencing the company's name. But Muziic used the name in an accurate and descriptive manner. It accurately noted that it was now offering Vevo content -- without ads and outside the US -- all legally via the use of the API provided by YouTube/Vevo itself.

Muziic's co-founder responded to Caraeff's email over at Hypebot, saying that he "was as shocked as anyone when I realized there were not yet any "pre-roll" advertisements for Vevo content in the API," but since it was how the company set up the API, it seems perfectly reasonable to use it that way. He also notes that he had reached out to Vevo prior to this to try to work out an arrangement with the company and got no response.

Filed Under: api, cease and desist, copyright, music
Companies: muziic, vevo

Microsoft Tries To Silence Revelation Of Bing Cashback Flaws; Leads To Revelation Of Other Problems

from the touchy-microsoft dept

I'd been meaning to write this up for about a week, but finally got it around to it, just in time to add some additional info. First up, though, comes the news that Microsoft's legal department demanded a blogger remove a blog post about flaws in Bing's Cashback offer (Microsoft's attempt to bribe users to search via Bing instead of Google). One of the methods for the cashback offer involved pixel tracking, and blogger Samir Meghani noted that this was easily gamed to post fake transactions to your account. He also noted problems with the way Microsoft used sequential IDs, allowing potential scammers to "deny cashback rebates to legitimate users by using up available order ID numbers." Instead of dealing with these flaws, Microsoft lawyers sent a cease-and-desist and forced the blog post offline. I'm actually quite surprised this hasn't received a lot more attention.

In the legal nastygram, Microsoft's lawyers claimed that because Meghani had tested the flaws out himself, he was likely guilty of violating "various laws relating to computer intrusion, unauthorized access and unauthorized use of information," while suggesting that his actions could result in criminal charges. That's ridiculous, of course. He didn't actually scam the company -- he was just exposing a flaw. This is legal bullying to silence someone for pointing out a rather basic security flaw in Microsoft's program.

But, of course, even though Meghani was silenced on that issue, it doesn't mean he has to be silent on all of the flaws in Bing's Cashback program, so his latest (found via Slashdot) is that various retailers that offer "cashback" via Bing purchases are showing higher prices if you search via Bing. In fact, the price people can pay if they do certain searches on Bing is higher than if they'd gone direct:

So, if I go directly to butterflyphoto.com, I pay $699 with 0% cashback. If I use Bing Cashback, I pay $758 with 2% cashback, or $742.84. Using Bing cashback has actually cost me $43.84, giving an effective cashback rate of -6.27%. Yes, negative cashback! Is this legal? False advertising? I don't know, but it's pretty sketchy.

The problem doesn't end there. Using Bing has tainted my web browser. Butterfly Photo set a three month cookie on my computer to indicate that I came from Bing. Any product I look at for the next three months may show a different price than I'd get by going there directly. Just clicking a Bing link means three months of potentially negative cashback, without me ever realizing it. I'm actually afraid to use their service even just to write this, because it may cost me money in the future. If you've been thinking about trying out Bing Cashback, you may want to rethink that.

Microsoft responded and called this "an isolated instance" that it had missed with its tools that try to prevent merchants from gaming the system this way. Still, perhaps rather than sending out legal nastygrams and PR pablum to people discussing these things, Microsoft should focus on actually making sure that Bing's Cashback bribery program actually works correctly and safely.

Filed Under: bing, bribes, cashback, cease and desist, flaws, security
Companies: microsoft

School Can't Handle Critical Community Message Board; Sends Legal Nastygram

from the and-the-message-board-folded dept

PopeHilarius writes in to alert us to an unfortunate situation. Apparently the private school Adelphi in Bay Ridge, New York, couldn't handle the fact that there was a Bay Ridge messageboard that had a critical thread about the school, including links to some news articles that were highly critical of the school.

Rather than respond to those claims, the school sent the messageboard owner a cease and desist letter, demanding the entire thread be removed. Tragically, the message board owner apparently was unfamiliar with Section 230 of the CDA and the rights of a service provider to resist such efforts, and just took down the whole thread. This is unfortunate, though, commenters on the thread appear to be reposting the same articles (and explaining section 230 to the board operator).

But, really, this is why lawyers still send bogus cease-and-desist letters: all too often they work. Having been on the receiving end of a few such letters, it's pretty damn scary to know you might get sued, and even if you know you're right, the whole concept of having to fight it can be scary (and expensive) unless you can find a good lawyer to represent you pro bono -- which isn't easy for many to do. It's legal bullying at its finest, but it works way too often. This is one reason, by the way, that we really could use a strong, federal, anti-SLAPP law, that would help sites understand that they can't be silenced just because someone doesn't like what they say, and gives those sites an easy, clear and inexpensive way to get any such cases dismissed quickly.

Filed Under: cease and desist, message board, nastygram, section 230

The Copyright Of Cease-And-Desist Letters

from the ain't-much-there dept

It's quite popular for some bullying lawyers to put a notice on their cease-and-desist letters, declaring that they are confidential and covered by copyright, and that any attempt to publish it or share it with the world will be viewed as copyright infringement. In many ways, this is an incredibly weak attempt by lawyers to avoid the old "Streisand Effect," whereby their cease-and-desist letter becomes the news and draws a lot more attention to what they wanted ceased and desisted. But does that claim mean anything? Typically, not at all. There's typically nothing in a cease-and-desist that would qualify as new and unique enough expression to be covered by copyright (there could be exceptions), and posting a cease-and-desist publicly would most likely be seen as fair use in almost every situation imaginable.

There was, of course, some buzz a year and a half back when a lawyer claimed to have won a copyright ruling over a cease-and-desist letter, but the details showed that was a gross exaggeration. The court had merely noted that the original had in fact been registered by the copyright office (a basic formality).

Still, this doesn't stop law firms from continuing to use this practice. Michael Scott points us to quite the story by the Citizen Media Law folks, concerning a massive cease-and-desist letter from the owners of one newspaper to another. The C&D was questionable enough in the first place. Basically, someone from the San Diego Reader asked for some info from Platinum Equity, a buyout firm that had purchased the competing San Diego Union-Tribune. It involved a sexual harassment lawsuit that Platinum had been involved in, which seems like a perfectly reasonable news story on which to request some information. Platinum did not see it that way and had its lawyers send an amazingly long C&D (the original was six single-spaced pages, which sure beats the typical one-pager found in most C&Ds).

The whole story seems bizarre, as the original request seemed perfectly normal for a news publication, and the company could have come back with a simple no comment. Sending a six page C&D practically screams out for attention -- and it's attention they're getting, despite the claim that publishing the letter would be see as copyright infringement. There's almost no chance that would actually get anywhere in court of course -- especially when it's newsworthy and the information was published by a news publication. Still, it does make you wonder why lawyers still think they can get away with such bullying tactics.

Filed Under: cease and desist, copyright

The Intellectual Property Asshole Competition

from the have-fun-with-it,-people dept

Now this ought to be fun to watch. We've written plenty of stuff about the ongoing legal fight between artist Shephard Fairey and the Associated Press. And, every time we write about it, someone always points out that Fairey is often just as bad as the AP. Despite being an "appropriation" artist, who regularly uses the works of others in his own work (something we think is great), he's also been known to legally threaten others for doing the same with his own work. So, it looks like someone has decided to poke both with a stick, to see who gets provoked first. That someone is artist Evan Roth. ChurchHatesTucker alerts us that Roth has launched his "Intellectual Property Asshole Competition" where he is selling, via his website, hand-painted version of both the Mannie Garcia/AP photo and Shepard Fairey's poster... and will see who is the first to send him a cease and desist. While we never think it's a good idea to infringe for the sake of infringement, this ought to be fun to watch.

Filed Under: appropriation, cease and desist, competition, copyright, eric roth, shepard fairey
Companies: associated press