If you tell me there’s a squabble between the U.S. Chamber of Commerce and the Electronic Frontier Foundation, my instinct is to side with EFF before I even ask what it’s about. If you tell me some group is trying to use the Digital Millennium Copyright Act to get a critical website taken down, I’m even more likely to assume it’s an abuse of the law. And yet I find myself in agreement with Mike Masnick about the current dust-up centered on prankster activists The Yes Men, whose built a fake Chamber of Commerce site to host the announcement of their ersatz press conference announcing “the Chamber’s” new position on climate change.
While we’re obviously not on the same page politically, I find a lot of what the Yes Men do pretty ingenious. But while their overall mission could reasonably described as a kind of parody—insofar as the point is for their hoaxes to ultimately be exposed—their site is not really a parody. What Adbusters does when they appropriate corporate logos and advertising imagery for their spoof ads is parody, and as such clearly entitled to invoke the fair use defense against claims of copyright or trademark infringement. But that’s because the purpose of trademark is primarily to prevent consumer confusion, and a person of ordinary intelligence who really looks at one of those fake ads will—perhaps after a moment of initial confusion or bemusement—understand it as an ironic critique of the company whose imagery is used. What the Yes Men are doing on the whole is an act of critique, but they’re not using the Chamber logo on their fake site as an act of détournement; they’re using it with the intent that readers falsely believe their press release to be genuine. It’s arguably a fairly benign form of deception in service of a larger critical point, but as a legal matter I doubt it’s entitled to a fair use exemption. And I think it muddies the waters in a potentially counterproductive way for EFF, which is a great defender of genuine parody against specious and censorious IP claims, to invoke it in a dubious case like this.