UPDATE | 9 June 2006
It is amazing what money will do. While there are more then 15 prominent sites running the Brangelina photos --the embargo is over after all-- I was insulted and berated by one of the lawyers of the company that serves the IP to my hosting company.
There are proper procedures that IP and hosting companies have to go through when there is a C&D. A C&D is not necessarily an order for a take down. Can you imagine if everybody could invoke the DCMA on an email everytime they didn't like something written about them?
I have been informally adviced that it is illegal to not follow certain steps and procedures and so I am weighing my options. Especially since I did not use the image to write about gossip but to criticize corporate tactics meant to curtail fair use and freedom of speech.
I am writing a longer piece on this issue especially the need for cultural creatives and progressives to invest in rock hard IT businesses. Back in the days art collectives like The Thing [ www.thing.net [1] ] where dial-up networks themselves, 20 YEARS AGO, because they knew of the danger of being shut down for unpopular art.
To save democracy we are going to have to build a new infrastructure capable of sustaining it. That means, investing in businesses that will fight for fair use and freedom of speech instead of cower to the bottom line.
I get an AIM from Lynn and her husband saying to call them immediately. I freaked out given her recent health woes; but they reassured me it had all to do with the Brangelina photo.
The lawyers for TimeWarner AOL and Getty Images invoked the Digital Millenium Copyright Act [2] sent a Cease and Desist [3] letter to AboveNet [4], a company that services hosting companies.
With no questions asked, AboveNet immediately contacted Simpli.biz, the company that holds our servers. They ordered a "DCMA TAKEDOWN". It means, it does not matter if TimeWarnerAOL is lying about the infringement of copyright allegations. They would force Simpli to force me to take down the image within 24 hours or risk losing their IP and their business by having it blacklisted. And they can force them to do so because this kind of harrassment is protected under the Online Copyright Infringement Liability Limitation Act [5].
It really does not matter if I claim Fair Use [6]. If I did not comply within 24 hours they would blacklist the hosting company and all IPs they held. What that means is that, once they blacklisted the IP, they would in effect put Simpli.biz out of business.
So what exists in place with the DCMA is a legally allowed harrassment system in place. If you are writing a blog that a big media company like TimeWarnerAOL finds to their dislike, they can use the DCMA to take you down, no questions asked. And the cost to fight to get back online makes it almost impossible for anybody to fight these kinds of battles.
So I asked Lynn what to do. She knows that ten years ago a similar thing happened to my kids' father with his Barbie spoof, The Distorted Barbie [6]. It was the first in a string of actions that would culminate in Mattel v. Walking Mountain Productions [7] [PDF [7]].
This is what came out of our conversation :
My friend Joy Garnett [8], who is the the source of culturekitchen's guerrilla man logo [9], has also become an expert on fair use. She sent me this bit posted at the FairUseNetwork mailing list:
The fair use doctrine permits anyone to use copyrighted works, without the owners' permission, in ways that are fundamentally equitable and fair. Common examples of fair use are criticism, commentary, news reporting, research, scholarship, and multiple copies for classroom use.
[...]
News reporting = blogging.
TimeWarnerAOL owns People Mag. They happen to be one of the biggest lobbyists behind the DCMA (after the RIAA). They also declared with their new "anti-spam" policy [10] how the stand against net neutrality [11] : they want to create different paying levels of access to email, rss, web, ftp, you name it. The want as many tolls they can lay and control along the information superhighway as they can.
Which is why it puts into a whole different context these comments from the people of Hello! and Getty Images :
[via Shiloh Not Ready For Close-Up, Gets It Anyway - Yahoo! News [12]]:
"It's a complete mystery," Hello!'s Herd told Reuters. "And we are very concerned at this breach of copyright."It is very difficult to control the Web and this proves how rampantly out of control it is. We have absolutely no idea how the picture was leaked."
A spokesperson for People magazine, meanwhile, had other ideas.
"Somebody from Hello! must have leaked it," the unnamed rep told BBC News. "I don't know how it got there."
However it did, it makes for a particularly pricey stealing of thunder.
As for Getty Images, which Pitt and Jolie announced earlier this week would market the photos, they claim the picture could be seen more as a teaser, enticing the celeb-savvy public into seeing the rest of the shots.
"Our legal team are looking into it and we will take it from there," spokeswoman Alison Crombie told Reuters. "But I really don't think it will devalue the pictures as everyone is dying to see the full set."
The C&D's are after the jump.
I represent Getty Images who has authorized me to act on its behalf for copyright infringement notification.
Infringement of a Getty Images photograph as it appears on the cover of HELLO magazine (the “Photographâ€) has been detected on the Web site http://www.culturekitchen.com [13]. The infringing photograph appears on the Web site as follows:
http://www.culturekitchen.com [14]
http://www.culturekitchen.com/liza/blog/this_one_is_for_perez_hilton_che... [15]This letter is an official notification under the provisions of Section 512(c) of the Digital Millennium Copyright Act to effect removal of the detected infringement. I hereby request that you IMMEDIATELY issue a cancel message, as specified in RFC 1036, for the specified posting and prevent the infringer, who is identified by its Web address, from posting the infringing passwords to your servers in the future. Please be advised that by law, as a service provider, you must “expeditiously remove or disable access to†the infringing passwords upon receiving this notice. Noncompliance may result in a loss of the possibility of immunity under the DMCA.
[ snip ]
Nancy E. Wolff
Cowan DeBaets Abrahams & Sheppard LLP
41 Madison Avenue, 34th floor
New York, NY 10010
Tel: (212) 974-7474
Fax: (212) 974-8474
Email: nwolff@cdas.com [16]
And here is the notice from the impossibly named Nicholas Jollymore, a guy who, once you google him [17], sounds like a fricking spawn of the dominionist [18] beast.
RGENT LEGAL NOTICE
I am an attorney for Time Inc., the corporate publisher of PEOPLE Magazine. PEOPLE Magazine has purchased exclusive North American rights to the only photographs which have been taken to date of Angelina Jolie and Brad Pitt and their newborn baby girl, Shiloh Nouvel. A website hosted by your organization, Culture Kitchen, has posted one of these photographs that appears on the cover of HELLO! Magazine in violation of PEOPLE Magazine's exclusive rights (see http://www.culturekitchen.com/liza/blog/this_one_is_for_perez_hilton_che... [19]). Culture Kitchen's posting of this photograph is a clear violation of the U.S. Copyright Act.
Under the U.S. Digital Millennium Copyright Act, your organization has a legal duty to ensure that this photograph is removed from any website you host. Your failure to remove this photograph from CultureKitchen.com would be a clear violation of the Act.
YOU ARE HEREBY PUT ON NOTICE that the photograph must be removed from CultureKitchen.com immediately. Please confirm by email or telephone that you have complied with your obligations under the Act by removing the photograph from CultureKitchen.com .
Nicholas J. Jollymore
Deputy General Counsel
Time Inc.
1271 Avenue of the Americas
New York, NY 10020
( (O) 212 522-3083
( (F) 212 467-0844
BTW : We answered to these servants of TimeWarnerAOL but we never got a reply to our email. I guess we are not Gawker [19] enough for them.
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