Nastygram? Delete it like spam
Last week, Shelley Batts, the Neuroscience PhD candidate and ScienceBlogs contributor, posted a response to the much-linked BBC article, “Alcohol ‘Makes Fruit Healthier.'” Unlike most bloggers that skimmed the article and joked about strawberry daiquiris, Batts took a look at the cited study from the Journal of the Science of Food and Agriculture. She posted a chart and graph from the study on her blog Retrospectacle, illustrating the point of that research: to determine what chemicals preserve fruit antioxidants and starve decay (of which, alcohol, while effective, was not the most effective treatment.)
The following day, John Wiley & Sons, the journal’s publisher, contacted Batts, threatening legal action unless she took the chart and graph down. Science bloggers, long championing the benefits of open access publishing, loudly protested, and the story was picked up by the Scientific American, The Guardian, Slashdot, and countless blogs.
“If there’s one lesson to be learned from this debacle,” wrote Cory Doctorow on Boing Boing, “It’s this: don’t submit your papers to the Journal of the Science of Food and Agriculture, because they will harass and intimidate people who try to do public scholarship with your work.”
Sarah Cooney, director of publications, later apologized on behalf of her colleague, a “junior member of staff.” But she proved to be equally fair use-illiterate, claiming, John Wiley & Sons “typically grant permission” in such a case.
Fair use isn’t a game of “Mother May I?” It is assertion of our freedom of speech.
Before the blogosphere rallied behind her, Watts removed the information as John Wiley & Sons instructed. That’s censorship. But it happens all too frequently. Chillingeffect.org, a joint project of the Electronic Frontier Foundation and multiple law schools, documents many similar cases, including a database of Cease and Desist “nastygrams.”
I hate my former bank, and was pleased to find a link to a complaint and parody site. Unfortunately, fucknationalcity.com is no longer in operation. But it wasn’t due to trademark infringement, as the Chilling Effects website notes. In October of 2003, National City accused fucknationalcity.com of “trademark infringement, trademark dilution and cyberpiracy.” None of those claims are correct.
Trademark infringement is when someone willfully confuses a trademarked good for a commercial profit. “Trademark dilution,” often used in cyber squatting cases, is when someone tarnishes or blurs the uniqueness of a product. Chilling Effects gives the hypothetical example of KODAK pianos, “KODAK could stop the person–even if consumers were not confused–because ‘KODAK’ is a famous mark, and its use on products other than film and film-printing accessories (or other products on which Eastman Kodak places the mark) dilutes its uniqueness.”
More famously, the Church of Scientology has accused websites of trademark violation, but Truthaboutscientology.com and its sister site scientology-lies.com are still up and running.
Two years ago, Wendy Cobrda, “CEO/Emissary,” CATENATE, LLC sent me an email, explaining the word I used for a blogroll list of current and former Cato Institute employees was “service-marked” by her company, Catenate Consulting. “Please remove it from your site, you are not legally entitled to use it,” she instructed.
Cease and desist letters are not confidential. I posted her letter to my website so that for now on, people looking for information on the “Catosphere” are welcome to see the “CEO/Emissary” is ignorant of fair use and trademark law.
Joanne McNeil is Brainwash‘s Science and Tech Editor. Her website is joannemcneil.com.