You got to know when to hold 'em...

You got to know when to hold 'em...

I realize that most who are reading this are doing so because of the picture.  Stick with me.  There is a point. 

With the blogosphere now making a significant (and exponentially growing) portion of overall web traffic, the ease in which a blogger can release information to thousands and possibly millions of eyeballs is staggering.  With just a few clicks of the iPhone, a blogger can in seconds put information out there in cyberspace for all to see.  This can be great if you want the information out there, but not so great if you don’t.  And to make matters worse, your request to take down the information maybe the very vehicle that the blogger uses to really drive traffic to the information. 

Case in point:

It seems that the good folks at Ralph Lauren didn’t take too kindly to a popular technology blog posting and criticizing their advertisement.  So like any upstanding and studious company, they sicked their lawyers on them.  Their lawyer sent a customary cease and desist letter asserting Ralph Lauren’s ownership of the image and demanding the blog remove it from the site.  The letter had all the standard copyright legalese that 9 times out of 10 results in removal of the potentially infringing content.  The blog, however, responded by posting this on its site:

“(I)nstead of responding to (Ralph Lauren’s) legal threat by suppressing our criticism of their marketing images, we're gonna mock them.”

The blog went on to do just that.

I strongly suspect that the traffic for this subsequent blog entry far exceeded the traffic of the original.  For example, as of this writing the subsequent entry was shared via twitter 1629 times, and the original only 111 times.  I actually read about this on the web site for the American Bar Association.  Do you really think that the ABA (or any other reputable news outlet for that matter) would have found the original blog entry newsworthy?

And to make matters even worse (for Ralph Lauren), the blog was in the right.  Copyright law has built into it certain exceptions to the general rules known as “fair use.”  The complexities of fair use are far beyond the scope of this article, but suffice it to say, what the blog did is classic fair use: reproducing a work for criticism, comment, news reporting, etc.  Ralph Lauren’s demands were really, in all candor, just a bluff, and the blog called Ralph Lauren’s bluff. 

Two important points to glean from all of this:

1.       If you receive a cease and desist letter demanding that you remove something from your blog or website, don’t immediately assume that the person sending it has a legitimate claim.  Give us a call.  Let us assess the situation with you. 

2.       If you own content that someone has posted on a site it is important to consider and weigh all the practical implications of your course of action.  You certainly don’t want to take the self-defeating action of drawing people’s attention to something that you are trying to take their attention away from.  At the Waterford Law Group we understand that business is not conducted in a vacuum, and that principle must be balanced against practical reality.

Since we are in Nashville it seems fitting to end this with one of the greatest of country music lyrics, and more importantly one of life’s truisms:

You got to know when to hold 'em, know when to fold 'em,
Know when to walk away and know when to run.

(I sure hope Kenny Rogers doesn’t send me a cease and desist letter.)

ObservationsKurt Beasley