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EFF Defends What’s Her Face? From Facebook

Back in the fall of 2011, some undergraduates at Yale created a cool class project. As part of their law and technology class, Bay Gross and Charlie Croom built a website and game that allowed Facebook users to discover how many of their “friends” they really know. The site, still available at whatsherface-book.com, asked people to reflect upon how much personal information they share with strangers or distant acquaintances. This June, Facebook sent Gross a message claiming that the site infringed its trademark and demanding it be taken down. EFF has responded on behalf of Gross. As we explain, the website is a clear example of critical commentary protected by the First Amendment.

When it launched, whatsherface-book.com allowed visitors to play an interactive game where they viewed randomly selected photographs of their own Facebook friends and attempted to name these people from memory. In addition to the quiz, the website included aggregate data and analysis. (This data showed that people recognize only 72% of their Facebook friends.) The site recommended that users preserve their privacy by “unfriending” people that they do not really know.

Despite its humble origins as a class project, the website received favorable media attention. A Forbes reporter discovered that she didn’t recognize quite a few of her Facebook friends. Others cited the quiz and urged the public to cull their friend list. Although the quiz is no longer playable (due to recent changes in Facebook’s API), the data and commentary are still available. The website has been up now for almost four years.

Last month, Facebook demanded that the entire site be taken offline. In its message, Facebook claimed that the site infringes and dilutes its trademark. Nonsense. There’s no evidence that anyone has ever been confused about whether the site is affiliated with Facebook. Rather, the site served its purpose: helping the public reflect upon their Facebook use. The First Amendment and trademark law allow for the nominative use (including in domain names) of trademarks to discuss and criticize trademark owners. Our client’s site is classic example of this kind of protected expression.

In sending its takedown demand, Facebook joins a long list of companies that have misused trademark law in an attempt to censor a critic (see examples here, here, here, and here). Ironically, Facebook has a decent record of helping its users respond to trademark takedowns from third parties. Given this history, it is disappointing to see Facebook send an unfounded trademark takedown of its own.

It may be that this takedown is an example of mindless over-enforcement rather than an intentional effort to censor. Either way, this kind of demand undermines online expression. Too often, targets are afraid to fight back or can’t find the help they need to do so. Facebook—and all trademark owners—should do better. For example, the company should carefully review the content of a website before demanding that it be removed from the Internet, and stop to consider whether the use it’s worried about is a fair use or otherwise protected. And now that we’ve pointed out the protections that apply in this case, Facebook should do the right thing: respect free speech and abandon its complaint against our client.

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