Echo Station: Exploring Star Wars Beyond The Daily News




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 Echo Station: Exploring Star Wars Beyond The Daily News




 

The 500-Pound Wookiee
Page 3

Don't get technical with ME...

Finally, let’s take a look at the legal aspects surrounding the takeover of a domain name and the issuing of Cease and Desist orders. Recent rulings have managed to play both sides of the line, supporting both the common Internet user and the large corporations, depending on which ruling is currently being reviewed. Let’s start by taking a look at those favoring the corporate players in this game:

  • On August 20th, 1999, Jeffrey Gerard Levy, a 22-year-old student at the University of Oregon in Eugene, Washington, pleads guilty to violating the No Electronic Theft Act of 1997. A spokesperson for the United States Department of Justice (DOJ) said Levy admitted to having "illegally posted computer software programs, musical recordings, entertainment software programs, and digitally recorded movies on his Internet Web site, allowing the general public to download and use these copyrighted products" this January. An important point to note is that a DOJ official said there is no evidence that Levy made any profit from the freely available works -- he simply operated what is commonly known as a "warez" site and allowed people to download material at will. According to the statutes of the No Electronic Theft Act, anybody who distributes ten or more copyrighted works with a value of more than $2,500 can face up to three years in prison and a fine of up to $250,000. Sentencing in this case will not take place until November 2nd of this year.

Obviously an extreme case, this still represents the first time that the operator of such a "warez" site has been successfully convicted (with the notation that this is a guilty plea and not truly a prosecution) of internet piracy. While some may think this is far too obvious of an example, there are numerous Star Wars websites around the internet which are distributing graphics, sound files, multimedia clips, and other files which are part of an overall package distributed by LucasFilm in some manner. The extreme example would be someone offering the entire "X-Wing versus Tie Fighter" CD-ROM available for download. However, an argument could be made that a site offering the entire contents of the "Behind the Magic" CD-ROM as separate graphics, sound files, and movies -- even if they were not distributed as a whole from the CD-ROM -- would be just as guilty as the site distributing the game and therefore liable.

  • The World Intellectual Property Organization (WIPO) and the United States Senate have both introduced new proposed sets of rules governing domain assignment which specifically target the practice of registering domain names related to famous trademarks with the specific intent of selling the domain names at a later date, a practice commonly referred to as "cybersquatting." Under current regulations, a domain registrant has 60 days to make payment on a reserved domain name. Under the WIPO proposal, registrants would have to provide verifiable personal contact information (which is lacking on domain queries in many cases) and pay the full registration fee for the domain at the time it is being reserved. The WIPO proposal also offers "exclusions" to the owners of "famous and well known" brands, which would effectively allow them to prohibit the registration of anything deemed to be directly related to such a brand throughout the world. The legislation passed by the United States Senate is even more severe -- it calls for penalties up to the amount of $100,000 USD per domain name on anyone deemed to have registered names "in bad faith" or attempting to profit from the association of a trademark owned by other persons or corporate entities. The measure passed through the Senate on the evening of August 5th, 1999 and is now pending in the House of Representatives.

In short, write your Congressmen, Congresswomen, and any and all legal representatives you can get valid contact information for, folks. (U.S. folks start here: http://www.senate.gov/ and http://www.house.gov/. If you don't know who your house representatives are, you can find out here.) 

Should this bill become law, a death knell could easily start ringing through the Internet at a deafening tone. All of those webmasters with sites containing "starwars," "phantom menace," a character’s name, or any other trademarked and/or copyrighted "brand" could be held liable for up to $100,000. I don’t know about them, but I’m certainly not in the financial position to afford such a dramatic cost to operate a Star Wars fansite.

Now that I’ve walked right up to the line of shouting "fire" in a crowded theater, allow me to present the other side in the still-unfolding chain of events -- recent rulings that are of benefit to fans.

  • The WIPO proposal mentioned above would limit any such legal liabilities to no more than $850 USD for "mediation" to take place involving a (hopefully) neutral third party arbitration system.
  • Just a few short days ago on August 24th, the United States Court of Appeals for the Ninth Circuit ruled that Internet domain names that contain trademarked names do not necessarily constitute a violation of the Federal Trademark Dilution Act of 1995. The Ninth Circuit includes all federal courts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam, as well as the Northern Mariana Islands, and is the largest of all federal court circuits. The ruling stems from the case of Avery Dennison Corp. v. Sumpton, in which the "Sumpton" in this case registered the domains "www.avery.net" and "www.dennison.net" on behalf of the email service provider Mailbank. The Avery Dennison Corporation took exception to the registration of these domain names, and took Mailbank to court over their use. At the heart of the matter was an important component of the entire struggle between private citizens and corporations in general -- the common practice exercised by registrars such as Network Solutions which, upon the presentation of a copyright notice identical (or even similar) to a domain name held by an individual, typically results in the suspension and revocation of the domain name from the original registrant in favor of the corporation. This decision overturns a lower court ruling that deemed Sumpton and Mailbank to be "cybersquatters." The appeals court further instructed the lower court in the decision to consider forcing Avery Dennison to pay the legal fees of Sumpton and Mailbank. Some legal experts hold the opinion that while similar or "infringing" domains may still be sued by copyright and trademark holders, it will likely be necessary to demonstrate that the domain in question is actively selling goods or services in a market similar to the trademark holder, or otherwise meeting the requirements of "dilution" of the holder’s trademark in some manner.

In essence, what we have here is a breath of fresh air after the legislation passed by the Senate. Not only do we have a much more reasonable figure than that $100,000 one passed by the U.S. Senate, but a federal court of appeals has ruled effectively in the favor of most true "fansites" on the internet - ones which are of a non-commercial nature who do not meet the standards of the Federal Trademark Dilution Act. However, commercial sites such as www.starwarsshop.com (which redirects to www.anotheruniverse.com, a very "commercial" style site), www.starwars-films.com, or www.starwars-online.com, all of which are commercial and sales-oriented in nature are likely to still be viable targets for domain shutdown notices and potential financial penalties. What remains to be seen is the legal interpretation revolving around sites such as Echo Station which operate a storefront containing links to actual commercial vendors for which a commission is received on each sale, or perhaps even sites such as Jedinet or theforce.net which carry banner ads in return for financial compensation. Since all three of our sites are essentially relying on the popularity of Star Wars to drive traffic to our respective domains, it could be argued that these sites "dilute" the traffic that would otherwise be travelling to www.starwars.com, and therefore directly causing them some level of "harm" (please note that I’m using these terms extremely loosely) in that loss of traffic and/or sales revenue from products bought at places other than the "official" online store.

However, this is where "Fair Use" comes into play. "Fair Use" typically protects sites such as Echo Station by rulings which basically say that it’s okay to use excerpts from someone else’s work in the process of building your own, if such excerpts are fundamentally necessary to your own original content and creation. Excerpts protected under "Fair Use" guidelines are most typically short in nature, should always be credited with the publication, and should not "dilute" the original work to the point where the commercial interests (if any) of the original copyright/trademark holder are harmed. For instance, using the scan of a book cover in conjunction with a review of the book is typically construed as falling under the "fair use" guidelines... but taking a scanner and using software to create an electronic copy of the book for distribution with your review would not be protected in the same manner.

A final threat which may affect Star Wars websites is the newly emerging concept of "contributory copyright infringement," also known as "deep linking." - the act of linking to specific pages or files "deep" within a website rather than to the home page of the site itself. The basic concept revolves around who ultimately controls the content of a given website -- is it open for public consumption in any manner possible once it’s published, or should the website operators be in control of the path taken to reach a given item?

  • Jeanne-Pierre Bazinet, owner of the website www.movie-list.com, which goes by the tagline of "The Net’s Most Updated Movie Trailers Site" was forced by Universal Studios to remove any and all links to their servers in July of this year. Mr. Bazinet’s website contained "deep links" from his own site to movie trailers and promotional materials located on the Universal Studios servers, and the studio took exception to this practice. "[Y]ou are not permitted to link to other sites that contain our copyrighted material without our authorization," wrote a representative for Universal. "Accordingly, you must remove all images from our films as well as links to other sites that have servers."

So not only did Universal take exception to Mr. Bazinet’s linking to their own servers, but also expected that he would refrain from linking to any other servers that contained their trailers as well. What would this have meant to sites like www.countingdown.com (which listed dozens of sites with "mirrors" of the Episode One: The Phantom Menace trailer upon its internet debut. Pay attention later in the article for information specifically related to the movie trailers) had this precedent been set last November instead of only a few weeks ago? What does this mean for sites like theforce.net and other news related sites which make a regular practice of "deep linking" to content owned by others?

Perhaps the most disappointing moment in this entire debate came earlier this year when Microsoft settled its case with Ticketmaster -- disappointing in the fact that the case was settled out of court rather than enduring the length of a trial. Many legal experts had their eyes and ears glued to the evolving case in expectation of important internet foundation and precedents being set. Ticketmaster took Microsoft to court over the practice of MSN’s Sidewalk City Guides providing "deep links" into the content of Ticketmaster Online. Microsoft’s contention, along with the obvious "free speech" argument, was that Ticketmaster should simply be grateful that they were getting traffic directed to them by whatever means it arrived. Ticketmaster fired back with comments about Sidewalk "cherry-picking" their content, cited figures of lost revenue from banner ad and affiliation deals, and felt that their offerings were de-valued by the "deep linking" practice being performed on a regular basis. One could easily take Microsoft’s acceptance of a settlement that strictly prohibits their act of "deep linking" as an admission of guilt on their part... but again, this was a closed-door, out of court settlement. No legal precedents were set and so the matter is still very much up in the air. For the most part, I feel Ticketmaster to have been wholly in the right on this matter. Sites that provide no original content of their own offer little more than a site dedicated to piracy and more outright methods of infringement and violation. Some sites may point to places like CNN.com as being a "news" site as well... but the main difference is that CNN offers up detailed content of it’s own making rather than a quick synopsis and a link to MSNBC for the actual story of interest. Sites like theforce.net offer up a host of other content on their site in addition to the front-end "news" portions, as do sites like Jedinet. Personally, I prefer sites link directly to www.echostation.com when they find something of interest on our site, especially if the item in question is featured on our main page at the time, unless we've already reached an agreement to the contrary. Allowing people the opportunity to see everything that our site offers is, in my opinion, a fair trade for having provided the original content that people feel should be linked to in the first place. For instance, over the course of this article there are numerous links to sites outside of our own which, for the most part, all go to the root level index page of the site. In a case where a "deep link" is provided, such as the link to Leah McLeod’s page on the Channel V website, an accompanying link has been provided to the main page of the website in context.

Some final thoughts ...

First, I’d like to sum things up with the advice that’s still as good as it was on the day it was first uttered -- "Caveat Emptor," which translates roughly to "Buyer Beware." When you purchase that domain name which you either think is going to make you rich, or makes you wonder if it might just get you in hot water... odds are good that there’s someone else out there with a story to tell you before you click that "submit" button on the registration page. The legal waters are still extremely murky when it comes to issues revolving around copyrights, trademarks, and the Internet. If nothing else, the shifting landscape of the legal rulings discussed above should make you understand that no position is certain, nothing is guaranteed, and anything can happen. With rulings and settlements coming down in favor of both the corporations and the private citizens of the world, we are all still very much on shaky ground.

Second, I thought I’d include a letter which sheds some light on at least a few of the things LFL has established copyright and trademark claims to, especially when it comes to legal issues. Specifically mentioned in this document are the files most commonly known as being the trailers for The Phantom Menace upon their debut. Theoretically speaking, LFL could’ve gone after www.countingdown.com and all of the other "mirror" sites out there with this in mind.

On the topic of "mirror" files... a distinction that tends to be lost on people is the definition of "mirror" when it comes to the Internet and files on different servers. Unless you are specifically asked by the copyright holder and owner of the files in question to host a copy of those files, you are not a mirror of anything. You are in fact violating copyright and trademark law. In essence, even though LFL turned a blind eye to the distribution of their copyrighted and proprietary content, they could have easily shut down any website distributing the movie trailers. Please see the following notice from an attorney representing LFL on matters of this nature -- page 1 page 2 page 3.

Those of you who distributed the files or may still have local copies of it will probably recognize some of the file names located on page 3 of this letter. Also listed on page 3 are some of the trademarks LFL claims as its own in specific relation to Episode One: The Phantom Menace.

As you can see by the above, LFL would have been well within their established rights to take down any of the above-mentioned websites. There was an incident on one of our own servers which related to this very issue -- even though all sites were specifically warned ahead of time  not to post the trailer on their site for download under any circumstances, one site disregarded this notice and did so anyway. This not only opened them up for potential legal action from LFL for copyright violation and infringement, but also caused their bandwidth usage to soar beyond all reasonable levels. So even though the shadowy threat of prosecution from LFL never materialized, a very real bill from us for bandwidth charges did. Was it worth it? In hindsight, I think all involved parties would agree it wasn’t.

Finally, I’d like to thank a few websites (and people) for their help and cooperation in my production of this article... even if it was just for the news and informational gathering purposes, they were invaluable:

To see a list of the domains I contacted for this article, click here.

(Dave Phillips is lead webmaster for ECHO STATION, and generally tries to sit back and let the folks foolish enough to volunteer to help out with things run the place as much as possible.  He can generally be found romping around on the messsage boards, and shamelessly promoting his web hosting company, NovaTech Web Services.   If you've got some free time, love STAR WARS, and want to be a part of a still rapidly growing and evolving site, he'd love it if you'd drop him a note.)

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