FC: Vivendi threatens critic who runs viviendiuniversalsucks.com

From: Declan McCullagh (declanat_private)
Date: Fri Aug 10 2001 - 10:38:34 PDT

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    [I was apparently BCC'd on this message sent to EFF. I think the problem 
    that David has -- and I recognize this sounds a tad heartless -- is that 
    the media's appetite for .sucks stories is waning. Media outlets reflect an 
    approximation of the news that their readership cares about. Outlets that 
    don't satisfy their customers will suffer reduced circulation and 
    advertising revenue, and, if the disconnect becomes extreme enough, perish. 
    Many companies have threatened lawsuits over *sucks domains, almost all 
    misguided and terroristic, and such a threat is not as novel now as it was, 
    say, in 1995. It's hard to appreciate from David's perspective, perhaps, 
    but threats are not as newsworthy as an actual lawsuit. David may want to 
    try the entertainment trade press; they could cover it as a business story. 
    Or he could hire a lawyer (Vivendi likely would not back down just because 
    of news coverage). Or move the site to a Geocities/Tripod location 
    (currently it seems to be offline) while keeping the content intact. --Declan]
    
    ********
    
    From: "TEAL EMLYN" <TEALat_private>
    Date: Fri, 10 Aug 2001 13:17:24 -0400
    To: askat_private, infoat_private
    Subject: need advice
    
    i know it may seem like small potatos, however, i am really
    disappointed at the media's overall lack of concern for internet free
    speech issues. vivendi-universal has threatened me with the all-too-
    familiar corporate tactic of threatening legal action if i don't hand
    over my "viviendiuniversalsucks.com" domain. but despite my sending
    the homemade press release you see below to more than 50 reporters,
    columnists, and tech news outlets, no one gives a crap. if no public
    support is generated they are likely to just quietly steam-roll me.
    the apathy displayed in this small instance is going to come back to
    haunt us all; it's depressing.
    
    if you or anyone you know have any advice i'm all ears. thanks. jds
    
    &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
    
    Communications Giant Vivendi Universal Threatens Free Speech Advocate
    With Legal Action
    
    Brookline, Ma. ­ August 10, 2001 - - Paris-based communications giant
    Vivendi Universal, itself already hoarding several hundred inactive
    Internet domains, many in the supposedly noncommercial .ORG category,
    has threatened legal action against the owner of the
    domain "VIVENDIUNIVERSALSUCKS.COM." He had planned to link the domain
    to a consumer forum site.
    
    In a letter to free speech advocate David Sallen, through the New
    York law firm of Brown Raysman, Vivendi Universal has demanded the
    domain VIVENDIUNIVERSALSUCKS.COM be "immediately transferred" to them
    or face "liability in this matter," including, "treble damages
    [which] include recovery of money, damages, and attorney fees," as
    well as "statutory damages ranging up to  . . . 100,000 dollars."
    
    Vivendi Universal makes no claim that the site's owner has offered
    the site for sale or profited in any way from the site. Ironically,
    this has not stopped the global powerhouse from accusing the
    unemployed current owner of "unfair competition," as well
    as "trademark infringement."
    
    "They're multi-national thugs," says Sallen. "U.S. courts have ruled
    that the use of a trademark in an Internet site for purposes of
    consumer commentary and criticism did not infringe or dilute that
    trademark. Moreover, they've held that an owner of a sucks site
    was 'exercising his right to publish critical commentary,' and that
    he could not do so without making reference to the trademark in
    question. Although the trademark holder may consider consumer
    commentary distasteful or unsatisfactory this is speech protected by
    the First Amendment...As such; a publisher may use the mark to
    identify the source of the goods or services of which he is
    complaining. This use is necessary to maintain broad opportunities
    for expression. Bally Total Fitness Holding Corp v. Faber, 29
    F.Supp.2d 1165, 1167 (C.D. Cal. 1998)
    
    "The question people should be asking," says Sallen, "is what
    possible use does Vivendi have for the site? Obviously they aren't
    planning to foster free speech. This is one more example of a foreign
    company trying to extend its trademark protection to eclipse First
    Amendment rights. The courts have already rejected this tactic,
    holding that trade mark rights are limited by First Amendment
    concerns. Justice Brandeis, long ago, put it best: 'If there be time
    to expose through discussion the falsehood and fallacies, to avert
    the evil by the process of education, the remedy to be applied is
    more speech, not enforced silence.'" (ss 31:148 at 31-216)
    
    For more information contact David Sallen @ 6177316939, or
    tealat_private
    
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