Yes, but is it funny? US Chamber issues takedown notice for Yes Men parody

It looks like the US Chamber of Commerce Web site, and has a convincing URL: www.chamber-of-commerce.us. It bears the seal of the Chamber, a private organization that advocates for business issues before federal legislators. And where you'd expect to find links to the real Chamber Web site, there they are -- real links to www.uschamber.com.

But it's another daring act of imitation crafted by the self-proclaimed impostors known as the Yes Men -- the same group that, in 2004, successfully pretended to be Dow Chemical representatives, appearing on the BBC to take responsibility for the Bhopal chemical plant tragedy. This was after Yes Men posted a similar impostor Web site purporting to come from Dow Chemical. That site had a press response address, to which the BBC addressed its request for an interview, and from which Yes Men -- still pretending -- complied.

A transcript of what appeared to be a speech from Chamber president Thomas Donohue from the National Press Club appeared last week on the fake Chamber site, appearing to reverse the Chamber's stance on global climate change issues. "In business, as in life, we sometimes don't look ahead. We seize the day while forgetting the year," the phony speech began. "Let's remember Lehman Brothers, a committed, solid member of this Chamber, who in the interest of short-term gain scuttled a century. They ate lamb, but were left without wool when the cold, hard winter set in. We must learn from the past, so that we can manage the future."

Continuing what may be a perfect batting average on the subject, Reuters ran the phony press release as actual news, and both CNBC and Fox News interrupted programming to report the developments as real. In a face-saving attempt, a CNBC commentator suggested that perhaps the White House, not the Yes Men, was actually responsible for the hoax.

The Chamber's real viewpoints on the dubiousness of scientific data pointing to the trends of global climate change, have recently prompted high-level members such as Apple and GE to resign their membership.
Last week, the real US Chamber issued a DMCA takedown notice (PDF available here) to the ISP hosting the phony site, Fremont, California-based Hurricane Electric. "The Web site infringes the Chamber of Commerce's copyrights by directly copying the images, logos, design, and layout of the Chamber of Commerce's copyright-protected official Web site," the notice reads.
The ISP's defense, according to the Chamber, was that it was an "upstream provider," and thus unable to comply.

Two Web sites side-by-side: [left] the real US Chamber of Commerce; [right] the Yes Men rip-off.

Last Thursday, the Yes Men's response came from its own lawyers: counsel for the Electronic Frontier Foundation. In a letter to the Chamber's attorneys sent that day (PDF available here), warning that if Hurricane Electric complies with the takedown request, the Chamber may be liable for misrepresentation of infringement. Citing the Supreme Court, the EFF's Matthew Zimmerman wrote, "parodies must often use substantial portions of an original work to make their point."

But the problem -- one which may haunt both the Yes Men and the Chamber -- is that the law has never been particularly clear on this point. What's more, the law has been specifically clear about the extent to which it has been unclear, pointing to a glaring, seven decades-long gap that has never quite been filled.

The first real legal precedent on the electronic use of parody came by way of a 1956 ruling from the Ninth Circuit Court of Appeals, against comedian Jack Benny. At the time, his TV show periodically produced send-ups of popular movies, and Benny's troupe had performed a parody of the 1944 movie Gaslight with Charles Boyer and Ingrid Bergman, based on the theatrical play. The rights holders to that production, Loew's Incorporated, claimed copyright infringement and won, and Benny's appeal was denied, after Loew's had argued that Benny's defense of parody-as-fair-use couldn't hold up. To be parody, Loew's said, it had to be funny.

The courts struggled to bypass having to address those arguments; and eventually the Ninth Circuit ruled that if a parody resembles its target too closely, that's copyright infringement. In other words, a reasonable person might be confused into thinking the parody was real because 1) Jack Benny looked so much like Charles Boyer (or Ingrid Bergman); 2) neither the real Gaslight nor the parody were...well, all right, all that funny.

But the case law on the current books comes from the Ninth Circuit's classic 1978 reversal of itself, in a case surrounding the alleged lack-of-fair-use around some of Walt Disney Co.'s trademarks. The Ninth Circuit decided at that time, "Parody and satire are deserving of substantial freedom -- both as entertainment and as a form of social and literary criticism…At the very least, where as here, it is clear that parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a great amount of the original work than is necessary to 'recall or conjure up' the object of his satire, a finding of infringement would be improper."

It's that case law which the EFF is relying upon for its Yes Men defense. However, here's the problem: In delineating where its predecessors went wrong, the 1978 Ninth Circuit ruled that a parody should not be confusable with the original, reasoning that true copyright infringement takes place when the infringing work substitutes for the original work.

And there will be the stickler in this latest Yes Men case, for the impostors didn't just use the name "Thomas J. Donohue," but also the graphics and style of the real US Chamber Web site. And the bottom of the fake speech transcript page clearly reads, "Copyright 2009 U.S. Chamber of Commerce...All rights reserved." That's a mark that traditionally has never been appropriated by others for "fair use" parody.

The implications of a final ruling on this subject go way beyond the interests of parody practitioners. For instance, an individual's right to register sound-alike domain names, or defacement names such as "AirFranceSucks.com" -- a practice currently considered cybersquatting -- could become permanently protected by law.

Bloggers at Think Progress chronicled Fox Business and CNBC breaking the fake Yes Men press release as real news.

Meanwhile, a completely separate issue could arise with regard to whether Yes Men appropriated their fake Web site name improperly. The name they chose falls under the .us top-level domain, whose rules are not the same as for .com.

According to the .us domain registration agreement (PDF available here), information posted on a .us Web site may be used by the US government for any purpose. For that reason, according to Dept. of Commerce guidelines, the Web site must disclose its proper identity.

The WHOIS database currently lists the registrant of the fake address as "Support and Commitment, Inc.," which is known to have also registered "CheneyBush.com," "georgewbush.org," and "YesBushCan.com." Back in 2004, at the height of the presidential campaign, the latter site was responsible for issuing a fake press release, claiming it had defected from its candidate and endorsed John Kerry for President -- an announcement that, once again, was covered by real sources as real news.