The Electronic Frontier Foundation
The cease-and-desist letter is a powerful tool in the hands of a deft lawyer with a deep- pockets client, even when the letter’s author doesn’t have a legal leg to stand on. Essentially it is a form of extortion, taking the indisputable fact that litigation is expensive and time-consuming and using it to bend a person’s or organization’s conduct to the will of a party with resources to spare. But lawyers who bully others with “CAD letters,” as they are called in the trade, are knowingly violating their profession’s ethics rules when they do so with the awareness that the law is not on their side.
Unfortunately, this doesn’t stop many lawyers from sending the letters anyway. Why? Because they work. They work especially well against small internet sites and blogs, and quite a few companies are in the habit of telling the sites that they must “cease and desist” posting opinions the companies don’t like, circulating uncomfortable facts, or treating their products without the proper deference and reverence. But an intrepid organization called the Electronic Frontier Foundation, of EFF, is intensifying a campaign to call their bluffs, and make unjustified cease and desist letters less common.
One of their first targets? Barney the Dinosaur.
In the past, EFF has reported on the efforts of others to resist unjustified CAD letters, and the organization’s website (www.eff.org) is a wonderful source of information, resources and advice for any web author who is under legal attack. It has periodically provided assistance to websites trying to defend themselves from spurious claims of libel or copyright infringement. Now it is filing a high-profile suit on its own, hoping to establish that misuse of trademark and copyright laws to censor legitimate website content is both unethical and an abuse of the legal system, not to mention an infringement of free speech.
The Lyons Partnership is the owner of Barney, the irritating plush purple dinosaur who delights young children and aggravates adults who are forced to endure his annoying laugh and insipid songs on PBS. Since 2002, it has repeatedly sent cease and desist letters to Stuart Frankel , who runs a satirical website that pokes fun at Barney, using parodies and lampoons of Barney’s familiar routines. EFF helped Dr. Frankel respond to these letters, but when Lyons’ attorneys continued to barrage him with threats, the foundation joined with Frankel in a law suit that asks the court to finally resolve the matter by declaring that his parodies do not infringe Barney’s copyright or trademark rights.
Barney is an ideal target for this suit for several reasons. For one thing, he is more fierce than he looks: Lyons has aggressively intimidated numerous sites that have attempted to give the character the ridicule he so richly deserves. Second, it seems that the substance of Barney’s legal threats are especially baseless. For example, lawyers have told Frankel that his parody of Barney’s monotonous, I. Q. lowering theme song (“I love you, you love me ” Bleccch! ) is a copyright violation. Parody is a well-established exception to copyright laws. Not only is there no question that Dr. Frankel’s version of Barney’s chant is a parody, the melody of Barney’s song has always been in the public domain, uncopyrightable because it has been in general use for about a century. It is the tune of “This Old Man,” of nick-nack paddywhack fame, a children’s song with lyrics that sound like Rogers and Hart compared to Barney’s version. Frankel isn’t using Barney’s words, and anyone can use the music. If this is a copyright infringement, Barney’s a veloceraptor.
“The misuse of intimidating cease-and-desist letters for censorship is a growing problem online,” said EFF Staff Attorney Corynne McSherry. “We hope this lawsuit sends a message to Barney’s owners and other corporations to think twice before sending baseless threat letters.” The Scoreboard hopes so too. And it thanks to the Electronic Frontier Foundation for having the courage to stand up to a too common unethical legal tactic that needs to be permanently discredited.
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