Legal Tips For Your 'Sucks' Site

by Oscar S. Cisneros

Bad corporate citizens beware. A website that promises to put a spotlight on companies with poor practices is scheduled to launch in September.

Corporatespotlight.org, where site visitors vote on corporations that act irresponsibly, will join the ranks of dozens of corporate criticism pages already on the Internet known affectionately as "sucks sites." Starbucked, Aolsucks, and noamazon.com are among the most-well known of these forums, where disenchanted consumers can post their beefs.

Sucks sites have proven more than a place to vent. For example, pepsibloodbath.com declared victory and closed itself down after the Pepsi-Cola Company quit advertising Pepsi at bullfights. Adbusters Magazine is deciding what to do with cokespotlight.org now that the Coca-Cola Company has pledged to make its coke machines friendlier to the environment.

Legal experts caution, however, that defeats in the form of costly lawsuits are also possible.

Although U.S. law affords ample room for criticism of companies on the Internet, free speech rights have limitations. Copyright, trademark, and defamation can interfere with a site's ability to say, "This company sucks."

Wired News interviewed a number of legal experts who offered general legal tips for would-be sucks site operators:

Amuse, don't confuse.

If a sucks site uses a company's trademark for noncommercial criticism purposes, it doesn't run afoul of trademark law so long as consumers are not confused or tricked into believing that the site is sponsored by or affiliated with the company, said Robin Gross, a staff attorney with the Electronic Frontier Foundation.

"If you want to say that 'Gap sucks' that's your First Amendment right, and just because Gap has a registered trademark doesn't necessarily mean that they have a right to stop people from saying 'Gap sucks,'" Gross said. "You're not violating the trademark because there is no consumer confusion if the consumer is well aware that it's a criticism site."

Mark Radcliffe, an attorney with Gray Cary Ware & Freidenrich, said that surfers, on first glance, should know from the basic look and feel that it's a criticism page done by a third party.

"It has to be very clear that you are not the corporation," he said. "Putting up a little disclaimer is not going to do it."

Preferably, the word "sucks" or some variant should be incorporated into the domain name -- especially if the URL uses a company's trademarks.

Also, no matter how clear and unconfusing a site may be, the experts warned that owners of famous trademarks may bring suit under a trademark dilution theory if a sucks site "tarnishes" a mark by associating it with negative things such as drugs or prurient sexual activity.

Fair Use Does Not Suck

Like trademarks, a copyright does not grant authors or companies absolute ownership over their copyrighted materials. The concept of fair use allows the public to make limited uses of otherwise copyrighted works.

"Just because somebody has a copyright doesn't mean that they can control every use of that material," Gross said.

Congress codified the judicially created fair use doctrine into the Copyright Act of 1976. In the act, "criticism" is the first in a short list of uses that Congress specifically noted as fair.

"Traditionally, fair use has been used for commentary," Radcliffe said. "To the extent that you're doing that, you're right in the home or the center of fair use."

However, rote reproduction of copyrighted works -- even if for fair use purposes -- is considered a no-no by the courts, Radcliffe said. Instead, a copyrighted work should be transformed from its original state into something new that still suggests the old.

Want to copy that image file? Better modify it with an image-editing program first. Want to upload company documents? Break them up into chunks with commentary interspersed in between.

"You have to take it and you have to transform it," he said.

For example, when Eric Raymond, an open-source advocate, received internal Microsoft emails detailing the company's outlook on the Linux OS, he was careful not to post them without commentary embedded into the document. Parody is another place where fair use provides protection to sucks site operators, so long as they transform the underlying material and only take enough to bring the copyrighted material to mind, Radcliffe said.

"You want to take enough of what you're parodying so that it conjures up what you're parodying," he said. "You can't take everything and say it's a parody."

A parody, he said, must also parody the original work, not something else. Mickey Mouse can be used to make fun of Mickey Mouse but not to make fun of society in general.

Copyright law has the potential to nab website operators not only for infringing material that they post, but also for infringing material posted to their site by other users, Radcliffe said.

Luckily, the Digital Millennium Copyright Act includes limitations on liability for Internet Service Providers and entities who do not control content posted by users.

Although the U.S. Copyright Office maintains a summary on the DMCA, Radcliffe said the liability exemption provisions are complicated. Among them are requirements that the service provider maintain a registered copyright agent, employ a terms-of-use that forbids infringement, and be prepared to remove infringing materials upon proper notice.

Truth Trumps Defamation Just as the law creates a space where free speech can thrive free from impingement by trademark and copyright law, it also forms the outer boundary of free speech.

Defamation, the dissemination of false information that injures the reputation of another, marks the spot where speech becomes a cause of action, said Jay Chadwick, an attorney specializing in defamation law.

"If you're going to publish something yourself, you've got to make sure it's true," he said.

Opinions, however, are another matter. "If you don't say something that is verifiable as true or false -- that that guy has his head up his butt -- it's not defamatory because nobody can prove whether it's true or false," Chadwick said."It's an opinion."

Chadwick said that sucks site operators who have discussion boards on their site face the danger of being liable for the words of others. He added, however, that the Communications Decency Act might provide a safe harbor.

Although most of the Communications Decency Act has been overturned in the courts, the provisions exempting ISPs from state law liability have survived, he said.

"If a webmaster or some ISP simply says 'here's a forum for you to express your views' and they don't actually edit the content, then they are probably protected by the CDA," Chadwick said.

Because of the specific language of the act, sucks site operators who run their own Web server -- as opposed to hosting their site on a commercial server -- are most likely to receive protection, he said.

"My recommendation would be that one who sets up a website hosted by a third party expressly disclaim any control over postings on the website, while at the same time reserving the right to remove any offensive posting, and providing a contact for people with concerns about postings," he said.

"This isn't a panacea. Big companies can still go after these sites and claim that postings are defamatory."

The Risks

Even if a sucks site operator avoids having a confusing site and copying infringing material, the risks associated with running sucks sites are still significant, said Richard Stim, an editor with Nolo, a publisher of legal information for nonlegal minds.

"This area is a place where big companies will use their resources to harass you," he said. Stim advises sucks site operators to adopt a CYA (Cover Your Ass) strategy by avoiding the appearance of sponsorship by the targeted company, by not using copyrighted materials more than fair use allows, and by steering clear of possibly defamatory content.

The danger of a lawsuit is always there, he said. Even if a webmaster is making fair use of copyrighted materials, going to court to prove it would be very costly, he said.

Then again, "You could probably get away with a lot more stuff than your lawyer will tell you that you can," Stim said. "I love those sucks sites. They're so funny."