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EFF Press Release Archives

Press Releases: November 2008

November 18, 2008

Parody Website Shut Down by Baseless Lawsuit Against Community Organizer

New York - A New York City community organizer is fighting back in court after her parody website challenging redevelopment efforts in New York City's historic Union Square was shut down with bogus claims of copyright infringement and cybersquatting.

The Electronic Frontier Foundation (EFF) is representing Savitri Durkee, an activist concerned with preserving the character of Union Square and Union Square Park. As one part of her education campaign, Durkee created a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP then filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name.

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.

"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil rights activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."

In the WIPO proceedings, USP has argued that Durkee's website copied elements of USP's website and that users are likely to be confused into thinking the parody site is actually USP's site.

"Ms. Durkee's site is a parody, so of course it mimicked USP's site to some extent. That's how parodies work," said EFF Staff Attorney Corynne McSherry. "The parody site is plainly a fair use and protected by the First Amendment. This is a case about censoring speech, not about infringement."

In addition to filing her answer and counterclaims, Durkee today filed a letter with the court asking for a prompt hearing on her fair use defense. Durkee asked the court to convene a conference as soon as possible to set a schedule for briefing and a hearing.

The law firms Mayer Brown LLP and Gross & Belsky LLP are co-counsel in this case.

For the full answer and counterclaim:
http://www.eff.org/files/filenode/usp_v_durkee/Answer%20and%20Counterclaims.pdf

For more on USP v. Durkee:
http://www.eff.org/cases/usp-v-durkee
Contacts:

Michael Kwun
Senior Intellectual Property Attorney
Electronic Frontier Foundation
michael@eff.org

Corynne McSherry
Staff Attorney
Electronic Frontier Foundation
corynne@eff.org

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November 13, 2008

Battle Over Online Gambling Sites Puts Free Speech, Commerce at Risk

Frankfort, KY - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals Wednesday to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe. The seizure, and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet. In a move to combat what it viewed as illegal online gambling, the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state, and in many cases even outside of the country. Unless the sites screened out Kentucky users, the court held, the seizure order was proper.

In its amicus brief filed with the Court of Appeals on Wednesday in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.

"The court's theory -- that a state court can order the seizure of Internet domain names regardless of where the site was registered -- is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the world's most repressive regimes will effectively control cyberspace."

As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars. Any order requiring their use would unconstitutionally burden First Amendment rights.

"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."

"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.

For the full amicus brief:
http://www.eff.org/files/filenode/ky_v_domainnames/amicusbriefky.pdf

For more on this case:
http://www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-names

Contact:

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz@eff.org

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