Censorship in the 21st Century: Targeting Intermediaries – EFF Legal Analysis by Matt Zimmerman

On November 12, 2008, a group of artists and activists unveiled a brilliant spoof of the New York Times, widely distributed to readers in New York and Los Angeles. This “July 4, 2009” version of the Times — which the real New York Times described as a “Grade-A caper” — boldly announced the end of the Iraq War, the nationalization of major oil conglomerates, the elimination of tuition at public universities, and the indictment of soon-to-be-former president Bush on charges of high treason. The poignant send-up, also available in an online version at www.nytimes-se.com, is a perfect example of parody in the 21st century. It certainly got its fair share of attention.Could the lawyers be far behind? Not surprisingly, the corporate targets of the parody were not pleased. Now, in what is becoming an all-too-familiar trend, one of those corporations has attempted to shut down the site by putting pressure on what is often the weakest link in the online speech chain: the domain name registrar. Stymied by the First Amendment and other legal impediments, those who don’t appreciate critical commentary and other “objectionable” online content have found intermediaries — providers of indispensable technical services like domain name registration and web hosting — much easier to intimidate.This time, the complaining (and overreaching) party was the South African diamond conglomerate De Beers, the target of a critical fake ad on the web version of the New York Times spoof announcing that diamond purchases “will enable us to donate a prosthetic for an African whose hand was lost in diamond conflicts.” Miffed by the criticism, De Beers responded not by confronting the authors (whose parody is protected by the First Amendment) but instead by threatening their Swiss-based domain name registrar, Joker.com. De Beers has demanded that Joker.com disable the spoof website’s domain name or face liability for trademark infringement.

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