| Earlier this month the mighty US corporation Dow Chemical was briefly caught on the hop by
a remarkable spoof version of their company website. Within hours
their lawyers spotted the legal flaw in their cunning scheme and
shut the site down. And hours after that the site was back online.
Index on Censorship on a tale of
lawyers, satire, copyright, censorship and still more
lawyers.
Timing their spoof to coincide with the anniversary of the Bhopal
disaster on December 3, The Yes Men, a group of anti-corporate
online pranksters, posted a clever spoof version of Dow Chemicals'
official website (www.dow.com) under a web address
(www.dow-chemicals.com) quietly purchased for the purpose.
The site was almost indistinguishable from the real thing except
in content - and even that fooled most people at first sight. It
drew a landslide quarter of a million visitors in 72 hours.
Then the real Dow called in their lawyers, who forced the site's
commercial host to remove the site. The second largest chemicals
corporation in the US, Dow claimed an infringement of the US Digital
Millennium Copyright Act (DMCA) and that use of the corporate logo,
even for satirical purposes, was a breach of copyright.
The site focussed on the company's responsibilities since buying
up Union Carbide, former owner of the Bhopal plant in India. The
chemical explosion there 18 years ago has so far killed an estimated
20,000 men, women and children.
"Do we have a moral responsibility to make sure the site of the
disaster is cleaned up and its victims compensated fairly? Of course
we do," says the spoof website.
"Would we be likely to do so if we faced consumer pressure, a
major stockholder resolution, or a significant brand attack on Dow's
good name? Of course we would. Once profitability is on the line,
our moral responsibility becomes clear."
In the end the site was shut down because it had been
fictitiously registered in the name of the son of then Dow chief
executive Michael Parker. The son merely faxed a copy of his driving
licence to the registration authorities and the site name was
legally reclaimed.
But the use of the DMCA to shut down websites still has free
speech observers worried. It is by no means certain how Dow demand
to cease and desist would play in the courts, given its overtones of
censorship and challenge to US first amendment free speech
rights.
Parody gets general support on free expression grounds, but not
if the intention is to 'pass-off' the work with the deliberate
intention to deceive. A similar case involving the satirical use of
the Barbie doll image occupied lawyers for years.
But the terms of the DMCA allow the litigant powers to
effectively pre-empt the courts by requiring the hosts of the
website to take immediate action.
Like much new internet-oriented legislation worldwide, the law
makes the carrier of message as liable as the messager. And while in
practical terms this should be akin to making a phone company liable
for insults traded down a phone, it is a powerfully effective means
of shutting down a site.
As Andrew Orlowski of the online IT Register newsletter points
out, the use of the DMCA obliges the hosting company to act
immediately. The company is warned that it may have to prove later
that they acted in good faith and that no laws were broken to the
"best of its knowledge".
Failure to do so could multiply its liability, so the vast
majority of firms declare discretion the better part of valour and
pull the plug on all websites that come to the attention of high
powered corporate lawyers.
Thus the host, Verio, promptly shut down Dow-Chemical.com and for
good measure, its fellow activists at www.thing.net - online home to
dozens of artists and activists with no link to the Dow spoof site.
In the end the Dow lawyers found that the pranksters' use of the
Dow CEO's son's name was a more reliable way of silencing the
website. However the threat to free speech posed by the DMCA still
stands.
"The aggrieved party is claiming that this violates copyright -
but they're making a legal assertion," web host company boss Robin
Bandy told the IT Register. "And that's bullshit half of the time,
as they've got (computer) programmes generating these letters."
Indeed the Yes Men's earlier parody site - targeting world trade
negotiators under the name www.gatt.org in 2000 - escaped closure.
But that wasn't the end of the story. Within hours the site was
back online at a new address (www.dow-chemical.va.com.au) set up to
allow the entire site to be downloaded for offline viewing later -
or reposting on another server should the original be closed down.
Yes Men spokesperson Andy Bichlbaum told the New York Times that
"if Dow gets this one too, it will continue to exist," as activists
have been encouraged to mirror the site content at additional web
addresses.
The site currently appears at six different addresses, including
dowethics.com and bhopal.doesntexist.com.
As for Dow CEO Michael Parker, he had problems of his own. On
December 13 the firm replaced him as company chief citing the
"disappointing" financial performance of the chemical company over
the last two years.
Dow Chemical has been contacted for their response to this item.
The article will be updated on receipt of reply.
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United States: Censoring satire
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