From: security curmudgeon (jericho[at]attrition.org) To: Jeanne.Hamburg@bakerbotts.com Cc: Heathens (staff[at]attrition.org), Sioda (sioda[at]attrition.org), Junk Yard Dog (alpha[at]attrition.org) Date: Tue, 26 Jun 2001 00:37:22 -0600 (MDT) Subject: Re: INFRINGEMENT BY ATTRITION.ORG On Thu, 21 Jun 2001 Jeanne.Hamburg@bakerbotts.com wrote: : RE: MasterCard/Infringement by attrition.org : : Dear Sirs: : : Your email address was provided to us by Inficad, which is hosting a : web site. As you probably are aware from the correspondence already : forwarded to you by Inficad, we are the attorneys for MasterCard : International Incorporated ("MasterCard"). : We must have your prompt, written assurance no later than June 22, : 2001, that you will remove the Infringing Material. Otherwise, MasterCard : will have no choice but to consider legal action. : : We look forward to your prompt reply. Dear Jeanne Hamburg: I am in receipt of your e-mail sent Thursday afternoon (June 21, 2001). There are several points I will address regarding your e-mail: 1. Your e-mail to me does not indicate which files or images you feel are infringing upon Mastercard's rights. Currently, Attrition.org offers 170,125 files or images maintained by seven volunteer staff members. Without clearly identifying these files, it is difficult to examine your complaint and react appropriately. 2. Attrition.org is a web site primarily aimed at providing computer security resources. It is widely known and quoted by media outlets as just that. The Mastercard "priceless" trademark is filed with the USPTO as a financial industry trademark. Since Attrition.org does not operate as a business, and does not conduct business with or as a financial institution, there is little to no chance that Internet surfers will mistake us with Mastercard or believe we offer competing services. For there to be trademark violation, it is my understanding that there needs to be a "likelihood of confusion to the consumer". I think it is exceptionally clear that no such confusion could exist to someone able to operate a computer. http://tess.uspto.gov/bin/showfield?f=doc&state=ga937n.3.1 IC 036. US 100 101 102. G & S: Financial services, namely, providing credit card, debit card, charge card and stored value smart card services, prepaid telephone calling card services, cash disbursement, and transaction authorization and settlement services. FIRST USE: 19980200. FIRST USE IN COMMERCE: 19980200 3. I have read several stories of Mastercard suing various individuals or web sites over alleged infringement upon the "priceless" trademark. In each case I have found, the material was protected under the Copyright Act 107 which allows fair use in parodies. In Campbell v. Acuff-Rose Music, 510 U.S. 569, Justice Souter delivered the opinion of the Court, stating, "Suffice it to say now that parody has an obvious claim to transformative value, as Acuff Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under 107." 4. In your original e-mail you stated that you MUST have our written assurance by June 22. Given that you e-mailed me on the afternoon of June 21 and demanded a reply in one business day, that tells me that you are relying on pure harassment and threat of legal action to try to win your case, not a solid legal foundation. In fact, you had originally sent us a word document with no text explanation as to the content of the attachment. When I replied that day and told you that I wouldn't open an untrusted word document and that you should resend it in ASCII text, you didn't reply at all. That told me this was nothing more than a frivilous attempt to scare Attrition.org and it's upstream ISP into removing something from our site not clearly defined in your letter. In conclusion, quit wasting both of our time. Quit harassing our upstream provider who has no control over the content of this site. Quit sending us vague threats of legal action without clearly documenting what you find objection to. Quit demanding immediate replies to mail when you refuse to show the same courtesy to me. Finally, I find it extremely ironic that Mastercard is trying to 'own' something that is touted to be "priceless" and something that "cannot be purchased".