Eric Corley is in the legal soup again. The man at the center of the landmark DeCSS case – a federal court battle over Corley’s posting of and linking to software code designed to decrypt DVD movies – is now being sued by the Ford Motor Company in a separate cyberspace matter.
Eric Corley is in the legal soup again.
The man at the center of the landmark DeCSS case – a federal court battle over Corley’s posting of and linking to software code designed to decrypt DVD movies – is now being sued by the Ford Motor Company in a separate cyberspace matter.
At issue in Corley’s latest role as a defendant is his registration in 1999 of a piquant domain name that contains the phrase “generalmotors” — preceded by a vulgarity that will not be included in this article. (The site can be reached directly at its IP address: 188.8.131.52) A preliminary hearing in the case is scheduled for this afternoon in federal district court in Detroit. Ford’s complaint arises from the fact that Corley recently configured a Web server so that when an Internet user types in the domain name in question, the user is forwarded to Ford Motor Company’s home page.
In legal papers, Corley says that he has registered a number of these types of domain names with the notion that he would one day use them to house various corporate complaint sites. Corley argues that his use of the anti-GM domain name and his pointing it at the Ford site is a new form of humor, a “hyperlink joke” told in “an expressive new medium that did not exist until 1992.” He compares his humor to sight gags in the early days of television that thrilled audiences accustomed to the audio formalities of radio.
Ford is not amused. The company filed suit late last month, claiming that Corley infringed and diluted or tarnished its “Ford” trademark. In addition to requesting an injunction barring Corley from pointing from his anti-GM domain name to the Ford home page, Ford is seeking unspecified damages, enhanced damages, punitive damages — in short, a lot of damages — and attorneys’ fees.
According to Corley’s lawyer, Eric C. Grimm, the Ford and the DeCSS cases both involve corporate attempts to unfairly use intellectual property laws to restrict forms of expression on the Internet. Grimm said that Corley, an Internet gadfly and editor and publisher of 2600: The Hacker Quarterly, a magazine and Web site devoted to hacker culture, is a handy foil for corporate America. A self-described technology performance artist and social protester, Corley goes by the online pseudonym Emmanuel Goldstein — the name of the leader of the opposition in the novel “1984.”
Grimm argued that the Ford case has several legal defects. For one thing, he asserted, Corley’s “joke” juxtaposing the domain name with the Ford site is a form of expression protected by the First Amendment. Grimm also said that because Corley does not use the “Ford” trademark in his domain name, the automobile company has no cause to complain about trademark infringement or misuse.
In addition, Grimm said Corley’s activities do not involve commercial sale of his goods or services — a requirement for triggering application of the trademark laws.
Most importantly, Grimm said, there is no likelihood of consumer confusion over the relationship of Ford to Corley’s “joke” and therefore no harm or slight of Ford’s trademark.
“The truth is that people who use this domain name learn about it from 2600 and are in on the joke,” he said.
One of the Ford’s outside lawyers, Thomas Lee, acknowledged in an interview that Corley has a legal right to use a vulgar term to criticize General Motors on his Web site. But what he cannot do, Lee said, is lead consumers to believe that Ford is the author of the criticism.
“The nub of our claim is that the defendant here is trying to attribute vulgar criticism of one of Ford’s competitors to Ford,” said Lee. “Here’s an example. Some folks have compared domain names to billboards on the information superhighway. [Corley] has erected a billboard on the information superhighway and said ‘[vulgarity deleted]’ General Motors’ on it, and there’s a tag at the bottom that says this billboard is sponsored by Ford.”
Ford’s resulting concerns are two-fold, Lee said. “Not only has Corley put Ford in a position that Net users are likely to attribute the vulgar criticism of GM to Ford, but Ford has attached to its Web site a word that is highly offensive.”
Legal experts familiar with the case predicted that Judge Robert H. Cleland will issue a preliminary injunction against Corley. Dan L. Burk, a professor at the University of Minnesota who teaches Internet law, said Ford’s tarnishment claim is strong one.
“Tarnishment happens when you juxtapose my trademark with something that is offensive or unsavory,” said Burk. “It causes consumers to view my mark with distaste. The domain name in this case has a vulgar word in it.” Burk said that Corley’s behavior is harmful to Ford “to the extent that the vulgar word will be associated in the minds of consumers with the Ford site or arriving at the Ford site.”
David H. Bernstein, an intellectual property lawyer in New York, agreed that Ford is holding the high cards in the case. He said Corley might have meant his linking to be a joke, but “one of the things about parody is that it’s only effective if it’s clear to consumers that it’s a joke.”
If Corley had used his domain name to point to a Web site that contained criticism of GM or the auto industry, “that would be fine,” said Bernstein. Doing what Corley did invites people “to think it’s a joke that Ford perpetuated and people will think less of Ford because of it,” he said.
Still, not every legal expert thinks Ford has a slam-dunk case. David J. Loundy, a Chicago Internet lawyer, said Ford’s lawyers could argue that Corley’s ploy is a form of marketing for his Web site and therefore is a “commercial use.” But Loundy said that even if trademark law applied, Corley’s lawyer could persuasively argue that no Internet user who tries his hand at the joke would be confused or think ill of Ford.
“It’s a self-selecting audience for the joke,” he said. “The only people who know about this are people who read about it on 2600 or in news articles.”
Many Web site operators believe increased traffic is always welcome, but that isn’t the case here, noted Carl Oppedahl, a lawyer in Colorado who specializes in Internet law.
“The effect of Corley’s actions, if anything, is to increase the number of visitors to Ford’s Web site,” he said. “Some people would think that is a good thing. Obviously, Ford doesn’t.”
Author: CARL S. KAPLAN
News Service: New York Times