In the 15 years since the Digital Millennium Copyright Act (DMCA) went into effect, bogus copyright and trademark claims and overzealous enforcement bots have misused the system to silence legitimate speech and creative expression online. We collect the most egregious examples of this kind of abuse in our gallery of villains — the Takedown Hall of Shame.
Today we name and shame three new honorees: Kern's Kitchen, meanspirited censors who seek to shut down recipe-sharing; Time Warner Cable, whose idea of entertainment doesn't extend to jokes about its customer service; and Fox, which doesn't mind if its efforts to police the Homeland cause collateral damage.
Louisville-based Kern's Kitchen has asserted a trademark over the term "Derby Pie," a popular Southern dessert made with chocolate and walnuts. For decades, Kern’s has threatened and sued restaurants that include derby pies on the menu and magazines that have the temerity to share “derby pie” recipes, even though the term is widely recognizable as the name of the pie in question.
Now the company behind the most litigious confection in America is going after individual websites that post new recipes for derby pies. In order to exploit the fact that free speech is only as strong as its weakest link, the company has taken its claims upstream to the hosts of those websites, such as Wordpress.com. To its credit, Wordpress did not simply takedown the websites, but worked with users to try to resolve the issue.
To be clear, Kern's Kitchen is asserting a trademark claim on the name itself, and not a copyright claim on the recipe. That's because in the U.S., recipes aren't generally subject to copyright restrictions. As a result, websites are in the clear if they change the name to something outside of Kern's trademark.
Our favorite: Mean Spirited Censorship Pie.
Time Warner Cable
If you live in New York City — or follow anybody on Twitter who lives in New York City — you have probably heard plenty about Time Warner Cable's Customer Service. That's the joke behind the gripe site TWCCustomerService.com, which looks a lot like a Time Warner site but asks: "What Can We Do Worse?"
It seems like everybody gets the joke but Time Warner Cable itself. The company is also exploiting free speech's weak links by going after each of the social media accounts associated with the website, one by one. The site is still alive (and still very funny), but its YouTube account and several of its Twitter accounts have been shut down.
Time Warner Cable should instruct its lawyers to look up the Streisand Effect: the phenomenon by which an attempt to suppress information results in wider dissemination of that information.
Fox owns a TV show called Homeland. It doesn't own the word "homeland," the concept of a homeland, or the many other works that go by the name "Homeland." But it seems no one thought to tell that to Fox's automated copyright enforcement bots that are programmed to send massive takedown notices for fuzzy matches of the word "homeland" all around the web.
And who's the latest dolphin to get caught in Fox's takedown fishing net? None other than science fiction author and EFF Fellow Cory Doctorow, whose recent sequel to his best-selling Little Brother young adult book is called — you guessed it — Homeland. Fox has sent takedown notices to Google (and probably others) for files with names like "Cory Doctorow Homeland novel."
Doctorow's Homeland is available under a Creative Commons license and has spent four weeks on the New York Times bestseller list. But apparently that's not enough to keep it out of the crosshairs of Fox's sloppy takedown notices, and that causes real harm. As Doctorow put it:
The DMCA makes it easy to carelessly censor the Internet, and makes it hard to get redress for this kind of perjurious, depraved indifference.
Well put, Cory. We work on raising the stakes for bogus takedown notices in two major ways: by fighting back in lawsuits like Lenz v. Universal, where we're holding a rightsholder accountable for notices sent in bad faith, and by naming and shaming bad actors like these in the Takedown Hall of Shame.