EFF Posts Gripe Site Legal Guide
Because copyright and trademark lawyers have had such itchy trigger fingers when it comes to issuing DMCA takedown notices, there’s a lot of confusion out there what exactly constitutes infringement, and what webmasters can and can’t do with intellectual property.
Part of the problem is that websites hosting other people’s content—YouTube, Blogger, eBay, etc.—remove the content at the slightest whiff of a DMCA notice to avoid trouble. This leads, of course, to abuse and to targets without any great recourse.
The Electronic Frontier Foundation posted a great, easy to understand guide to dealing with intellectual property with regard to “gripe” or parody websites. In addition to three guidelines dealing with trademarks themselves, the fab-four fair use guidelines regarding copyright are there as well.
The EFF’s six ways to avoid controversy in the first place are highly useful. The tips are intended to apply to parody sites, specifically sites using a trademark in a domain as commentary (example: TrademarkSucks.com). They are summarized below (but please read them in their entirety at the EFF site, as well as Eric Goldman’s amendments and additional precautions, if you’re not feeling quite as, well, ballsy as the EFF):
- Be noncommercial
- Don’t use trademark alone in domain name (add commentary like “sucks”)
- Add a disclaimer of unaffiliation
- Find a service provider with a backbone*
- Be selective with borrowed text or images
- Don’t offer to sell domain name to trademark owner
*Number three is a great one, and EFF links to a list of Web hosts that specialize in free-speech hosting, meaning they aren’t scared by a DMCA notice and “won’t dump you at the first sign of controversy.”