Another classic example how the unforsight of the capitalist market system can waste lots of energy at people expense.
Crackerjap.com is a fairly innocent website. You won’t find naked pictures there, or illegal MP3s, and there are no links to naughty sites that teach you how to copy DVDs.
Indeed, you really won’t find much of anything at Crackerjap, and that is by design. The site is part of an ever-expanding Web genre called “everything/nothing,” or “E/N,” which basically means that it just features the sporadic, esoteric observations of its owners — nothing too racy.
So why, then, did Cracker and Jap, the two guys who own the site, receive a threatening letter from the lawyers of the Nintendo Corporation of America late last year, asking them to “cease and desist the infringement of Nintendo’s intellectual property rights” — a letter that caused their Web hosting company, A+Net Internet Services, to shut down their site?
The short answer is, it was all a big mistake. For some reason, Nintendo accused Crackerjap of infringement, something it clearly did not do. But try as they might, the owners of Crackerjap couldn’t get their name cleared with their ISP.
And this kind of thing, say Internet legal experts, occurs all the time, almost always without much publicity. Companies accuse webmasters of some kind of wrongdoing, and ISPs, especially smaller ones, give them the benefit of the doubt. Publishers of content, and First Amendment rights, end up trampled in the process.
As first reported by John Hawkins on his webzine Brassknuckles, Crackerjap’s ordeal began with a little-known HTML code called a meta tag. These tags are the part of a Web page which describe that page’s content to services, such as search engines, that index the Web.
For example, a site such as Wired News might include the words “technology” and “news” in a meta tag, so if a search engine came across a Wired News page, it would know to group it with other tech pages.
Somehow, Nintendo came across a copy of an old Crackerjap page whose meta tag included the word “Pokemon.” The site no longer uses meta tags, although it did in its early incarnations, said Robert Izumi, the Jap of Crackerjap.
One important thing to remember about a meta tag is that its content is not visible to readers of the page; you can only find out what’s in the tag by looking at the HTML source for a page, a thing that most users of the Web don’t do.
Yet despite its virtual invisibility, Nintendo still apparently believed that “Pokemon” in Crackerjap’s meta tag was so harmful to its business that it had to threaten legal action. Why? Because for some reason, Nintendo thought that Crackerjap.com was a porn site.
The letter from Nintendo’s lawyers to Doug “Cracker” Eoff and Robert “Jap” Izumi calls Crackerjap both “pornographic” and “sexually explicit,” but anyone with a browser can see that the site isn’t even as racy as the pathetic pleas for sex on Craigslist.
It’s clear, then, that Nintendo’s accusation is baseless on all counts; not only is Crackerjap not sexually explicit, but at the time of Nintendo’s letter, it also had no meta tags at all.
In a technical sense, it was impossible for Cracker and Jap to comply with Nintendo’s letter, as they had essentially complied long before, by removing the Pokemon tags.
But nothing so simple as fact, apparently, prevented A+Net, the site’s Web hosting service, from acting hastily. Nintendo had also notified A+Net of Crackerjap’s alleged wrongdoing, and A+Net immediately notified Cracker and Jap that their site was being shut down pending Nintendo’s clearing of the charges.
Cracker and Jap tried repeatedly to contact both Nintendo and its lawyers to explain that their site did not feature a Pokemon meta tag, nor any Pokemon content at all. But they received no response.
So Cracker and Jap, unwilling to incur legal costs and eager to have their site go back online, decided to call it quits from A+Net and move their site to another hosting service. They saw this move as the only way out of their Kafkaesque trap.
When contacted for comment, Victor Cerda, an attorney for Nintendo at the firm Perkins Coie, referred Wired News to Nintendo. But neither Nintendo nor A+Net returned repeated calls for comment.
When told of what happened to Crackerjap, Lee Tien, a senior staff attorney at the Internet-advocacy group the Electronic Frontier Foundation, said, “Oh my, that is certainly very unfortunate.”
Tien then enumerated the many ways that Crackerjap might have beaten Nintendo’s rap, had it only stayed and fought.
For example, he said, “If they were using Pokemon in their meta tag, then that would be a trademark issue. And trademark law is really a branch of unfair competition law.”
For example, it would probably be illegal for a Ford dealer to use the word “Chrysler” in its meta tag, as that could possibly cause Chrysler-seekers to end up at the Ford site and purchase something. That would be characterized as an unfair use of Chrysler’s trademark.
On the other hand, if a Chrysler discussion site or a site dedicated to the Chrysler building used a “Chrysler” meta tag, that would be OK.
So more likely than not, it would have been legal for Crackerjap to use “Pokemon” in its meta tag, as it is merely a discussion site — it isn’t hawking a replacement for Pokemon.
“But often these sites find that they don’t have the resources to fight such things,” Tien said.
Even if the plaintiff has no legal legs to stand on, he suggested, the defendants often find that its easier to cave.
Moreover, “It’s the smaller ISPs that don’t know the law or don’t want to oppose a big company like Nintendo, so they often go after their customers,” Tien said.
Tien said that the Digital Millennium Copyright Act provides guidelines for both ISPs and webmasters about what guidelines to follow when there’s a question of copyright infringement, guidelines which give an accused webmaster the right to an explanation, at the very least, before a site is taken down.
But it’s unknown how strictly these guidelines are followed, he said. “A lot of this is under the radar,” he said.
The EFF will soon be setting up a database of such accusations, Tien said, so the group can track how often trademark holders are succeeding in getting sites shut down. “This will solve the invisibility problem,” he said, “and it will educate companies not to send out their knee-jerk nastygrams.”
Recently, Nintendo sent out another nastygram to Imagine Media, which published a book called the 100% Unofficial Pokemon Trainer’s Guide.
Nintendo alleges that Imagine infringed its copyright by printing images of Pokemon in the book. In response, the gaming site DailyRadar.com, which is owned by Imagine, said that it will not publish Nintendo stories.
Author: Farhad Manjoo
News Service: Wired News