I have a HUGE problem and was hoping to get some advice...

My hosting company, Websurface.net, hosts a fan site of one of Comedy Central's shows "That's My Bush" - www.mybush.org

I got a UPS Next Day Air World Wide Express shipping document today from Meredith Simpson from the Legal & Business Affairs department of Comedy Central.

She claims that the site violates Comedy Central's rights under the federal copyright law and consitutes trademark infringment, unfair competition and dilution under federal trademark law.

She goes on to DEMAND that I immediately cease and desist from hosting this website, and that I return to them an enclosed copy of the letter to warrent that Ihave ceased to host this website and will not host a similar website in the future.

IF that is not enough, she also DEMANDS that I provide to them withen 10 days of reciept of this letter the identity and contact information for the ower(s) of the 'www.mybush.org' domain name so that they can instruct them to immediately cease and desist any further copying, distribution, sale or offering for sale and/or advertising and promotion of such Merchandise.

Besides my huge ego that make me dislike anybody that DEMANDS:smash: stuff instead of requesting, Out of all the websites I host... the owner of this one has more passion and has put the most effort into his website than any other I host. :(

This is all despite the fact that I can not find any attempt to sell any kind of merchandise on this website.

They have a case over the domain name, as this situation may fall under ICANN's Domain Dispute Policy... but can they really DEMAND me to shut this site down?

I'd like to (no.. I DEMAND:rolleyes: ) hear some opinions soon.. I need to make a desicion by the end of the day.

As long as the person who made the site acknoledges everytime he says the show name on the webpage that its a registered trade mark there is nothing comedy central can do. And since the domains my bush and not thats my bush you dont have to hand over the domain even if they do discontinue the site.

Send back a certified letter stating that you are within your legal rights to host this site as long as that site is within the law, and that they are insane for wanting you to take it down since it promotes their show.

If it starts getting serious, IE they have a lawyer contact you and file a case, I would discontinue the site and hosting iof it, as im sure comedy central has more money than any of us to spend on legal matters.

Thank you for the professional insight...

I have already talked to the webmaster of the site, and DEMANDED :rolleyes: that he adds some copy right infromation to his website. I will fax him the copy of the letter today so he can better understand what is going on.

Me and this client talk allot, he actually got a letter from them too today and was planning on contacting me.

Thanks again

Fan sites are common. Unless they're selling products based on the show I think she's just being a good lawyer and trying to scare you (not a legal opinion!).

I agree that the site should have somewhere that the show and contents are trademarks of CC and the site is not affiliated with them.

ps- If she was really an "expert" on websites, why doesn't she just do a whois for the name of the domain owner? :)

Originally posted by Jaiem

ps- If she was really an "expert" on websites, why doesn't she just do a whois for the name of the domain owner? :)

I found out a little while ago that she did contact the webmaster via email.

She also kept refering to the domain as "the domain name 'www.mybush.org'" in the letter which kinda irritated me everytime I had o read it.

Technically, her terms would have been correct... but it seems like somebody who is an "expert" would simply refer to the 'domain mybush.org'

note: This reply is just a cheap attempt to help push my post level up past the "newbie" title :D

On the legal side, you as a host are not responsible for sites you host unless you are made aware of copyright infrindgment or other illegal activities. Then if you are aware of it and ignore it, you are legally liable. I would be very careful if I as you coreyC.

As far as handing over contact information, you don't have to. The only way they can get that information form you is by filling for a subpena.

Also, as long as the fan doesn't profit off of someone elses copyrighted material, they are well within their right to post about it. As long as your client is really a fan site and not someone who is just out there to profit off of someone elses copyrights, you should be in the clear.

I'm not a lawyer but I think the profit thing is if the site/business owner makes thier own products using copyrighted materials w/o having a license to produce such materials.

OTOH, if they sell hats, shirts, mugs etc. that were obtained from a licensed distributor can't see how that's against the law. That's just marketing.

Either way, it does get sticky for the host.

Damn I like that show too. Too many lawyers and not enough common sense.

This will probably be a good start for answering any hosting copyright and infringment questions. http://www.ivanhoffman.com/provider.html

Under the Digital Millenium Copyright Act (DMCA), you as a hosting provider must respond to their demands. It's quite unclear exactly what that response must be - I'd strongly suggest asking your lawyer for his/her legal opinion (you do have a lawyer versed in Internet issues, right? If not, contact me for a referral to mine). While some on this forum might have been faced with this issue before (I know I have), none of us are lawyers (I don't think) and none of us are experts.

In our case, it was just a couple of pages on the client's web site, not the entire site, that was in dispute, and our attorney had us tell the client to remove those pages or find a new web host. The client removed the pages, end of story.

I don't know what you should do in this case, because I don't quite know where the law stands. That's why you definitely should talk to a lawyer.

I can tell you what not to do, however - do not simply ignore this notice - one thing the DMCA does make clear is that you have no liability if you do not know that an infringement is going on, but if, once told about the infringement you continue to ignore it, then that exposes you to liability, which you definitely don't want.

Bottom line - go talk to a lawyer, one experienced and knowledgable about the Internet and the DMCA. It'll be money well spent (I guarantee your pockets are not nearly as deep as Comedy Centrals, so you do not want to get sued.

Good luck,

Jason

You know, the irony of this is kind of amusing. Here's a show made, I'd assume, without the permission of the person whose name it's appropriating, threatening legal action against someone who appropriated without permission the name they appropriated!

So the producers of the show are profiting from using the Bush name (and by no means am I a fan of George W, his dad, his brother, his mother, his wife, or any of the rest of that crowd) because it's considered "fair use," but they don't feel that a fan site's use of their name is also fair use.

Is this a cool world or what?

I had a similar incident like this occur. It was not a fan site, but another domain name that I was working with. I recieved the same "Cease and Desist" letter from a Law Firm, this is just a standard notice that is sent in these cases. I reviewed what I could find on the subject and responded with a statement that I was in no way competing with their business, trying to ransom the domain and that it was being used as a personal hobby. A few days later I recieved a second letter from a marketing director at the company themself, it was a bit demanding but they were now offering to purchase the domain. I refused the offer for 'sentimental' reasons and a week later Fedex showed with a check for twice the original amount. I guess they weren't much for words and just figured that'd end the whole bit. I wasn't going to argue the matter further . :)

JayC - Parody is protected by the 1st Ammendment.

Unless they're portraying Bush was walking around in women's underwear and having sex with farm animals there's little he can do about it. And as a politician it's probably in his best interests not to make a case of it anyway.

Though you do have to wonder what would have happened if a few years ago someone made a parody show about the Clintons............

There wasn't a reason to make a show about the Clintons. They were funny enough in real life.

I am planning on sending this resonse letter to Comedy Central tomorrow... comments/suggestions please

May 10, 2001

COMEDY CENTRAL
1775 BROADWAY FLR 10
NEW YORK, NY
10019-1903

Dear Meredith Simpson:

I am replying the demands sent to me on May 7th regarding a website hosted by websurface.net, www.mybush.org

I would first like to sincerely thank you for bringing these actions to the attention of myself, and websurface.net. We wish to protect your rights, as well as the rights of our client(s).

I have spoken to the webmaster/owner of the mybush.org website and he informed me that he was contacted by a member of the Comedy Central staff. He then informed me that no sales were ever made, and that most of his site is still in development. The Webmaster has not made any major efforts to promote this site as of yet.

I explained to him how serious this situation was, and at the end of the conversation I feel confident that there will not be any further conduct that will violate Comedy Central’s rights.

I am sorry to inform you that we will not be able to meet your demands. The Webmaster has been very cooperative in resolving these issues and even asked me if he could speak with you personally on what would and would not be suitable content for www.mybush.org.

If this client had not been cooperative in resolving these issues I would have submitted to your demands immediately. I will continue to monitor this site and will cease hosting privileges at the slightest hint of any further conduct that would violate Comedy Central rights.

Sincerly,

Corey Costadura
Account Manager
www.websurface.net

Corey - IMO, non-legal, that letter sounds argumentative.

IMO you should just say something like "Thank you for bringing this to our attention", add something to say it is your policy not to support acts of copyright infringement and conclude with a general statement such as "We will continue to monitor the situation."

This way you acknowledge thier letter to you, state that you don't support illegal activity, but you aren't taking sides or making judgements nor stating a position that you may later have to change (i.e. you say you can't meet thier demands but later you may have to). Also, call it a "request", not a demand even though it is. You want to defuse the situation and "demand" is a charged word.

Keep the letter short and brief. Anymore might be used against you later if they do take legal action.

You should also give a your lawyer a copy to review before sending it!

Good luck! Let us know how it goes!

Actually,

I took a quite look at the site and it appears to use both sound and imagery from the Comedy Central show. If this is true, then yes, it infringes the copyright of Comedy Central, and they have a claim. Under intellectual property laws episode writeups using verbatim dialogue would also by an infringement.

It's the same law that makes it 'technically' illegal to video tape TV shows to watch later.

Some people make a claim that if it's altered from it's original format or changed visually it loses it's copyright. This is in fact not true at all. If you create something, then you have the legal right to call it your own. Any variation of that image, sound or whatever doesn't alter that fact and the creator still retains full rights to the original works.

I agree they are being a little anal as any promotion of a show should be encouaged to spread the word. Comedy Central has always been staffed by the sort of people that would appreciate fan sites... But you're dealing with their suit and tie guys here...

Greg Moore

Psst.

double post - could someone take out one of those please? :)

Greg Moore

Originally posted by akashik
Psst.

double post - could someone take out one of those please? :)

Greg Moore

Done :)

Originally posted by Jaiem
JayC - Parody is protected by the 1st Ammendment.As I said, it's considered fair use. Doesn't make the situation any less ironic, or humorous -- for those of us on the outside, perhaps not for CoreyC!
Though you do have to wonder what would have happened if a few years ago someone made a parody show about the Clintons.Exactly what did happen in response to the constant parodying of Clinton on every late-night talk show, SNL, etc. etc.... nothing.

Back on topic: Corey, I think your letter sounds fine. I wouldn't worry about sounding argumentative as Jaiem suggests you might. Your letter will be read by lawyers, they're used to writing and reading such communication.

Their goal is to get the content of the site removed or changed. As long as that happens they won't care who did what to make it happen.

Under the DMCA, IF a host files a registration statement with the Copyright Office, and IF a host has certain language on its site, and IF a host promptly responds to good faith notification of copyright infringement by taking down the offending site, the host should have immunity from contributory copyright infringement.

There has been some question as to whether an ISP can be liable for contributory trademark infringement, and under a recent case (not dispositive everywhere, but persuasive) the ISP CAN be held liable.

In short, it is risky for a host to turn up its nose at a cease-and-desist letter, unless the letter is patently baseless. Unless you are a lawyer, it is unlikely that you are qualified to determine if a letter is patently baseless.

Bottom line (sorry for the commercial for my profession, but. . .): You should hire a good lawyer.

All the best.

-- Jon

[The above does not constitute legal advice (though it does constitute advice to talk to a lawyer), and no attorney-client relationship has been formed.]

Originally posted by JayC
Back on topic: Corey, I think your letter sounds fine. I wouldn't worry about sounding argumentative as Jaiem suggests you might. Your letter will be read by lawyers, they're used to writing and reading such communication.



(not a lawyer and this is not a legal opinion!!)


Exactly! They have lawyers to rip that letter apart! (no offense intended). Lawyers know what buzz words to put into a letter to make it stand up in court, how to hit all the right legal buttons to put you on the spot etc.

As they say in the movies "Anything you say can and will be used against you in a court of law!" Don't give them any ammo to use against you. That letter can be twisted by a clever lawyer in a dozen different ways.

Sometimes less is better. You may think you're addressing the contact but someone else can see it as being argumentative and obstructionist. Thier lawyer can argue in court they made a 'good faith' effort to contact you and request you to "cease and desist" but you refused. And by seeming to take the web owners side you might be seen as an accomplice.

In short, before you put a response in writing think carefully about it. The may go away or it can come back to haunt you.

Hi,

I know its like 3 months later, but what happened?

-Kyle

I sent the letter above to Comedy Central, asked the webmaster of the website to make some small changes to his site, and never heard about it again.

My registered agent in Nevada hasn't heard anything from them either.

All is well, thanks for asking =]

Thank god I live and will be based in Canada, that means that this DMCA means absolutly nothing to me. I just have to find out the Canadian equivalent ( if there is one:D )

It might be because Comedy Central is cancling That's My Bush...

"IF that is not enough, she also DEMANDS that I provide to them withen 10 days of reciept of this letter the identity and contact information for the ower(s) of the 'www.mybush.org' domain name so that they can instruct them to immediately cease and desist any further copying, distribution, sale or offering for sale and/or advertising and promotion of such Merchandise. "

You have no legal obligation to do so and possably depending on your contract/tos with the client you may be able to be sued.

"She goes on to DEMAND that I immediately cease and desist from hosting this website, and that I return to them an enclosed copy of the letter to warrent that Ihave ceased to host this website and will not host a similar website in the future."

You cant control what kind of sites you are hosting.