The Parody Police: Bash Barney online; soon you've got mail

Kevin Baker in Nashville, Tenn., responded by giving Barney the pseudonym Barfie. Brian Bull in Vermillion, S.D., dismantled his elaborate satirical photo-montages of Barney posing with Hitler and Eva Braun. Michael DuVernois in Minneapolis promptly removed the "Barney Must Die" surrealist newsletter he had composed as a joke with his university friends.

All it took to snuff out these online lampoons were a few letters fired off from attorneys at Gibney, Anthony & Flaherty in New York City, representatives of Barney's parent, Lyons Partnership. The attorneys accused the Web-site authors of copyright infringement and trademark dilution.

Then they threatened them with "injunction, damages, costs and attorneys' fees."

"I wasn't prepared to invest the emotional and financial resources to fight it, so I decided somewhat reluctantly to pull up shop and avoid a headlong collision with the lawyers," says Bull of his decision to dismantle his Web site.

The offending publication was "Into the Purple Abyss," a parody of Barney. Using a pseudohistorical essay and a series of digitally altered photographs, the site was meant as a jab at what Bull called Barney's shallow message and commercialization.

But can "copyright infringement" and "trademark dilution" claims really silence such online parodies? And what could have happened to Bull and his site if a court concluded the claims had any merit?

Clearinghouse on the law

A new online database of legal analysis and commentary may help people such as Bull find out. The founders want to provide the average person with enough information to make more informed decisions about how to exercise creative energy in cyberspace.

Run by Wendy Seltzer, a Harvard Law School fellow and attorney, and the Electronic Frontier Foundation, a leading civil-liberties group, it's called the Chilling Effects Clearinghouse (www.chillingeffects.org).

The site solicits these sorts of intimidating letters and, once received, law students from several of the nation's top law schools (under supervision of professors) annotate, analyze and explain the legal jargon. Then they publish typical examples on the Web site.

So far, the schools involved are Harvard, Stanford, the University of California, Berkeley and the University of San Francisco.

"As we see lots of the same problems repeating themselves, we'll build up a store of analysis that will help people to understand where the line is between parody and what's protected and copyright infringement," said Seltzer.

The annotated letters, frequently asked questions and issue summaries take readers beyond the simple advocacy position — "They can't do this! They've violated my civil liberties!" — to more detailed explanations of the case history behind some of the claims in the threatening letters. It's clear from reading the annotations that the courts still have to confront and make up their minds about a lot of the issues.

A broader purpose

The clearinghouse isn't limited to exposing the weaknesses in cease-and-desist letters aimed at online parodies. The project aims to highlight how courts, corporations and individuals are re-interpreting constitutional rights in cyberspace.

Other issues tackled include fan fiction (when amateur authors extend the stories of TV shows they follow by writing and publishing online their own stories involving the shows' characters); domain-names disputes; trademark violations; anonymous speech; and defamation on the Internet.

The site's founders hope to receive enough letters for the clearinghouse to serve as a sort of barometer of the chilling effect on the Internet so that policy-makers can get a better sense of whether we are a nation of feckless intellectual-property pirates or one cowed by overzealous corporations abusing intellectual-property law.

That may be a tall order, as few will want to confess to being pirates. Most letters received by the clearinghouse concern online parodies, Seltzer said.

The scope and significance of the problems that the Chilling Effects Clearinghouse seeks to address are both profound and huge.

The average person now has an unprecedented level of access digitally to images, books, movies and music, as well as the ability to manipulate and then publish those works using software programs and the Internet.

At the same time, corporations want to exert more control over their products and images. They are doing so by sending out cease-and-desist letters and by lobbying for more federal legislation that would give them more control through technology.

Piracy and the industry

The entertainment industry, of course, is mostly concerned with piracy. "Digital movies on the Internet can be pilfered and hurled at the speed of light to any spot on the planet. This is what gives movie producers so many Maalox moments," Jack Valenti, chairman and chief executive officer of the Motion Picture Association, wrote in The Washington Post in February.

Valenti cited recent research that found more than 350,000 movies are illegally downloaded everyday over the Internet. Some of these currently are in the movie theaters.

But this emphasis on piracy has warped the debate from focusing on the central issues surrounding the digitization of our culture, say scholars.

The debate really is about exercising Americans' constitutionally protected rights in cyberspace, and the clearinghouse is trying to reshape that debate.

"The clearinghouse is providing an important service. It helps educate the public about its rights — which are substantial, but not often articulated," said Siva Vaidhyanathan, author of "Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity" and a professor at University of Wisconsin at Madison.

"These sorts of rights should be part of the discussion, but in recent years copyright discussion has focused on theft and piracy, not use and freedom."

A recent example occurred in late March, when Walgreens, the nation's largest pharmacy chain, tried to shut down Michelle Cohn's site. An eighth-grader in Wheeling, Ill., Cohn runs a Web site (www.wallgreens.com) that criticizes Walgreens for selling cigarettes.

Walgreens filed a complaint with the World Intellectual Property Organization, which handles Internet disputes, claiming Cohn's Web site infringed on its trademark.

After she publicized Walgreen's legal maneuvers, the company backed down.

Others who want to check on the legality of their activities can contact the Chilling Effects Clearinghouse.

Vaidhyanathan, hopes that people do.

"I'm hoping that efforts such as this clearinghouse can raise awareness and start a serious consumer rebellion so that we can take back our copyright system from those who corrupted it," he said.

Sarah Lai Stirland is a free lance writer in New York. She can be reached at sarah@sarahstirland.com.