April 19, 2014

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Chilling and Warming Effects

For several years, the Chilling Effects Clearinghouse has cataloging the effects of legal threats on online expression and helping people to understand their rights. Amid all the chilling we continue to see, it’s welcome to see rays of sunshine when bloggers stand up to threats, helping to stop the cycle of threat-and-takedown.

The BoingBoing team did this the other day when they got a legal threat from Ralph Lauren’s lawyers over an advertisement they mocked on the BoingBoing blog for featuring a stick-thin model. The lawyers claimed copyright infringement, saying “PRL owns all right, title, and interest in the original images that appear in the Advertisements.” Other hosts pull content “expeditiously” when they receive these notices (as Google did when notified of the post on Photoshop Disasters), and most bloggers and posters don’t counter-notify, even though Chilling Effects offers a handy counter-notification form.

Not BoingBoing, they posted the letter (and the image again) along with copious mockery, including an offer to feed the obviously starved models, and other sources picked up on the fun. The image has now been seen by many more people than would have discovered it in BoingBoing’s archives, in a pattern the press has nicknamed the “Streisand Effect.”

We use the term “chilling effects” to describe indirect legal restraints, or self-censorship, because most cease-and-desist letters don’t go through the courts. The lawyers (and non-lawyers) sending them rely on the in terrorem effects of threatened legal action, and often succeed in silencing speech for the cost of an e-postage stamp.

Actions like BoingBoing’s use the court of public opinion to counter this squelching. They fight legalese with public outrage (in support of legal analysis), and at the same time, help other readers to understand they have similar rights. Further, they increase the “cost” of sending cease-and-desists, as they make potential claimants consider the publicity risks being made to look foolish, bullying, or worse.

For those curious about the underlying legalities here, the Copyright Act makes clear that fair use, including for the purposes of commentary, criticism, and news reporting, is not an infringement of copyright. See Chilling Effects’ fair use FAQ. Yet the DMCA notice-and-takedown procedure encourages ISPs to respond to complaints with takedown, not investigation and legal balancing. Providers like BoingBoing’s Priority Colo should also get credit for their willingness to back their users’ responses.

As a result of the attention, Ralph Lauren apologized for the image: “After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman’s body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”

May the warming (and proper attention to the health of fashion models) continue!

[cross-posted at Chilling Effects]

Comments

  1. John Millington says:

    “We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”

    What about the caliber of their legal department?

    • Crash Gordon says:

      … is that they used the word “caliber”! That may be closer to the truth than they intended.

  2. rp says:

    It seems to me that “warming” effects work best for people who are either poor enough to be judgment-proof or who have sites big enough to get reliable instant attention and who have enough other resources that they could face at least the first round of legal action with equanimity. As far as I know there isn’t an anti-SLAPP group that goes around publicising this kind of stuff and encouraging the pileons needed to get lawyers to back down on a regular basis.

  3. Meca Graphics says:

    I agree with the above comment, this has been totally blown out of proportion. The reputation of their legal department is lacking and they have a lot of answering to do!

  4. Tim says:

    Notice how Ralph Lauren apologized for the image distortion only after it gained a lot of attention. I suspect they would have tried to brush it under the carpet otherwise.Makes you wonder how many other things like this have been covered up?

  5. Jason says:

    You have a point there Tim as far as I know there isn’t an anti-SLAPP group that goes around publicising this kind of stuff and encouraging the pileons needed to get lawyers to back down on a regular basis.

  6. dp says:

    These things get “covered up” by corporate big wigs on a daily basis. The only time an apology ever surfaces is in response to a public call-out, which usually bits them on the rear – hence that “streishand-effect.”

  7. olivier chauvin says:

    i totally agree with mecagraphics when he say that it has been totally blown out of proportion … this is just crazy. depannage mac

  8. Anonymous says:

    Fix the DMCA.

    Best: Get rid of it, except for the safe harbors. (Or even get rid of them too, as long as all of copyright law goes with them.)

    Next best: change from “notice-and-takedown” to “notice-and-notice”.

    Not too bad: at least make it costlier and ensure there’s a public record. Reword that part of the DMCA so that for a notice to compel a takedown on pain of losing safe harbors, the notice has to go through the courts in some way, incurring filing fees and landing in public-domain records. Sending a direct legal nastygram would not have the effect of requiring a takedown or risk losing safe harbors, though it would obviously remain possible (free speech).

    • rp says:

      If the filing were official in the right way it would also subject claimants to the penalties that typically accompany the knowing or ought-to-be-knowing filing of false statements. That would act as a fine deterrent.

  9. valerie says:

    As far as I know there isn’t an anti-SLAPP group that goes around publicising this kind of stuff and encouraging the pileons needed to get lawyers to back down on a regular basis.