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".
