Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly. Follow Kate on Twitter @ktummarello. Andrew Mirsky of Mirsky & Company contributed to this post.
Gone are the days of bashing your boss in the breakroom. Now, colleagues gather online to anonymously air their grievances. A group of disgruntled Demand Media, Inc. employees did just that with their website DemandStudiosSucks.com. Then Demand Media struck back.
Late last month, attorneys for Demand Media, a content production company whose properties include eHow, LIVESTRONG.com, Cracked.com, typeF.com, Trails.com and GolfLink, sent a letter to DemandStudiosSucks.com asking it to remove content that had been copyrighted by Demand Media.
The media company accused the people behind this censorious website of creating and maintaining “a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests.” The letter also referenced “an internal presentation regarding the company’s business plans”, published without permission on DemandStudiosSucks.com.
Immediately, of course, the letter was posted on DemandStudiosSucks.com.
The next day, a user named “Partick O’Doare,” who has posted the majority of the content on the site, published an open letter addressing the claims made by Demand Media’s attorneys. Although the website removed the content addressed in the letter, O’Doare explained that the site’s creators had not acknowledged any infringement in removing the content.
Instead, those behind the website claimed that their use of the Demand Media content fell under fair use guidelines, specifically protections for commentary and criticism. “Let’s be honest,” the open letter says, “if ever there was a case of unequivocal fair use, this would be it.” A statement which should raise flags to anyone who previously felt similarly.
Fair use is a defense to a claim of copyright infringement, but not other claims. A fair use argument cannot simply succeed on its merits where other legal rights are violated. Context matters. So, for example, as seen in some Facebook “suck site” cases, fair use will not protect against a claim of defamation. Employees who publish company trade secrets and other proprietary information cannot rely on fair use to defend against claims of violations of corporate and employment law.
O’Daire’s letter proudly boasts that the voices behind DemandStudiosSucks.com were fully prepared to defend themselves, citing the fair use cases Lenz v. Universal Music Corp. and Online Policy Group v. Diebold, Inc.
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