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Under their cyber-skin

November 16, 2009

The U.S. Chamber of Commerce has emerged in recent years as a vigorous proponent of strong intellectual-property laws, joining the entertainment industry, publishers and software developers in pushing the government to do more to combat counterfeit goods and digital piracy. That's a natural role for one of the business world's top lobbying forces, considering how important copyrights, patents and trademarks have become to U.S. firms in the information age. Lately, however, the chamber has resorted to the kind of intellectual-property overkill that only undermines the public's respect for the rights the chamber is so eager to protect.

A troupe of anti-corporate pranksters called the Yes Men drew the chamber's ire with a pair of stunts in October that mocked the lobbying organization's obstructionist position on global warming. The Yes Men's modus operandi is to impersonate people in order to ridicule their stance on issues. On Oct. 19, the troupe released a statement, purportedly from the chamber, announcing that it had reversed its position and would support a bill to cap carbon emissions. The Yes Men also created a fake chamber website, using the trademarked chamber logo and linking to pages on the real site, to add verisimilitude to the prank. Two members of the troupe then held a news conference at the National Press Club in Washington to elaborate on the change in policy, posing as chamber spokesmen (and slapping the chamber's logo on the podium). Minutes into the event, a representative of the real chamber interrupted the conference to expose the deception.

Edgy? Yes. Illegal? Hardly. What the Yes Men did was clearly parody -- an attention-getting practical joke that had (fake) chamber representatives discrediting the (real) chamber's arguments. And the joke worked only because the hoax was exposed. More important, it was also commentary on public policy, the kind of protected speech that the courts and Congress have long exempted from infringement claims. Yet the chamber swung back hard at the troupe, using one of the most powerful weapons in the copyright arsenal. The day after the mock news conference, an attorney for the chamber sent a letter to Internet service provider Hurricane Electric demanding that the bogus website be taken down because it violated the chamber's copyrights. The 1998 Digital Millennium Copyright Law effectively compels Internet providers to grant such requests automatically, without examining their legal merit -- otherwise they risk being held liable for the alleged infringements too. But Hurricane Electric wasn't supplying Internet access directly for the site; it was providing bandwidth to another Internet provider, MayFirst/People Link, that connected the parody site to the Net along with about 400 other organizations' websites -- all of which were knocked off-line by the chamber's move.

MayFirst and the parody site got back online shortly thereafter. The chamber then filed suit against the troupe, saying it had violated federal trademark protection and anti-cybersquatting laws. In the chamber's view, the coordinated stunts were a scheme to promote Yes Men merchandise and ticket sales for a newly released Yes Men movie. "These infringing and fraudulent acts are antithetical to public debate on important issues, because they prevent the public and the press from knowing the true position of the intellectual property owner whose trademarks and copyrights were used without permission," the chamber's lawsuit argues.

The chamber needs to develop thicker skin. Rather than confusing people about the chamber's views on global warming, the "commercial identity theft" at the heart of the Yes Men's stunt helped call attention to them. That's what any good parody does. The aim of the bogus news conference and website wasn't to gain a competitive advantage over the chamber by damaging its brand or deluding the public, which trademark and cybersquatting laws were designed to guard against. It was to raise the heat on the chamber to change its position on cap-and-trade legislation. Granted, the troupe had a movie to promote, but that's speech too -- in the Michael Moore, corporate-America-as-villain vein. It's a message that the chamber may not like, but one that the Yes Men should be able to deliver without having to defend themselves in court.

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