FC: Vivendi threatens critic who runs viviendiuniversalsucks.com

[Declan McCullagh <declan () well com>]

[I was apparently BCC'd on this message sent to EFF. I think the problem 
that David has -- and I recognize this sounds a tad heartless -- is that 
the media's appetite for .sucks stories is waning. Media outlets reflect an 
approximation of the news that their readership cares about. Outlets that 
don't satisfy their customers will suffer reduced circulation and 
advertising revenue, and, if the disconnect becomes extreme enough, perish. 
Many companies have threatened lawsuits over *sucks domains, almost all 
misguided and terroristic, and such a threat is not as novel now as it was, 
say, in 1995. It's hard to appreciate from David's perspective, perhaps, 
but threats are not as newsworthy as an actual lawsuit. David may want to 
try the entertainment trade press; they could cover it as a business story. 
Or he could hire a lawyer (Vivendi likely would not back down just because 
of news coverage). Or move the site to a Geocities/Tripod location 
(currently it seems to be offline) while keeping the content intact. --Declan]

********

From: "TEAL EMLYN" <TEAL () law com>
Date: Fri, 10 Aug 2001 13:17:24 -0400
To: ask () eff org, info () eff org
Subject: need advice

i know it may seem like small potatos, however, i am really
disappointed at the media's overall lack of concern for internet free
speech issues. vivendi-universal has threatened me with the all-too-
familiar corporate tactic of threatening legal action if i don't hand
over my "viviendiuniversalsucks.com" domain. but despite my sending
the homemade press release you see below to more than 50 reporters,
columnists, and tech news outlets, no one gives a crap. if no public
support is generated they are likely to just quietly steam-roll me.
the apathy displayed in this small instance is going to come back to
haunt us all; it's depressing.

if you or anyone you know have any advice i'm all ears. thanks. jds

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Communications Giant Vivendi Universal Threatens Free Speech Advocate
With Legal Action

Brookline, Ma. ­ August 10, 2001 - - Paris-based communications giant
Vivendi Universal, itself already hoarding several hundred inactive
Internet domains, many in the supposedly noncommercial .ORG category,
has threatened legal action against the owner of the
domain "VIVENDIUNIVERSALSUCKS.COM." He had planned to link the domain
to a consumer forum site.

In a letter to free speech advocate David Sallen, through the New
York law firm of Brown Raysman, Vivendi Universal has demanded the
domain VIVENDIUNIVERSALSUCKS.COM be "immediately transferred" to them
or face "liability in this matter," including, "treble damages
[which] include recovery of money, damages, and attorney fees," as
well as "statutory damages ranging up to  . . . 100,000 dollars."

Vivendi Universal makes no claim that the site's owner has offered
the site for sale or profited in any way from the site. Ironically,
this has not stopped the global powerhouse from accusing the
unemployed current owner of "unfair competition," as well
as "trademark infringement."

"They're multi-national thugs," says Sallen. "U.S. courts have ruled
that the use of a trademark in an Internet site for purposes of
consumer commentary and criticism did not infringe or dilute that
trademark. Moreover, they've held that an owner of a sucks site
was 'exercising his right to publish critical commentary,' and that
he could not do so without making reference to the trademark in
question. Although the trademark holder may consider consumer
commentary distasteful or unsatisfactory this is speech protected by
the First Amendment...As such; a publisher may use the mark to
identify the source of the goods or services of which he is
complaining. This use is necessary to maintain broad opportunities
for expression. Bally Total Fitness Holding Corp v. Faber, 29
F.Supp.2d 1165, 1167 (C.D. Cal. 1998)

"The question people should be asking," says Sallen, "is what
possible use does Vivendi have for the site? Obviously they aren't
planning to foster free speech. This is one more example of a foreign
company trying to extend its trademark protection to eclipse First
Amendment rights. The courts have already rejected this tactic,
holding that trade mark rights are limited by First Amendment
concerns. Justice Brandeis, long ago, put it best: 'If there be time
to expose through discussion the falsehood and fallacies, to avert
the evil by the process of education, the remedy to be applied is
more speech, not enforced silence.'" (ss 31:148 at 31-216)

For more information contact David Sallen @ 6177316939, or
teal () law com

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