March 10, 2004

THE NEW YORK TIMES is threatening a blogger for putting up this parody NYT corrections page. A Times lawyer writes The National Debate:

Your actions are deliberately designed to confuse people and are clearly illegal.

Both statements seem false to me. It’s pretty obviously a parody: note the February 30 date — er, and the URL clearly visible at the top. And the Site Meter counter! (Er, and to be painfully obvious, the disclaimer at the bottom. . . ) Sure, some people might be dumb enough to be fooled anyway, but that’s true with any parody. Thus, I’d say that “clearly illegal” is, well, false. “Arguably not a protected parody” would be more honest, though in my opinion still wrong, except to the extent that anything is arguable if you pay enough lawyers to argue it.

Of course, the biggest giveaway that this is a parody site is that it’s a page featuring corrections of major factual errors in New York Times oped columns. No one familiar with the Times would think that was genuine. . . . And that very fact may be what stung the Times into sending this threat, though more likely it’s just the product of humorless IP lawyers with nothing better to do. (Can a “humorless” lawyer even express a valid professional opinion on whether something is a parody? Sounds like a good topic for a law review article!)

To me this looks as dumb and self-defeating as Fox News’s suit against Al Franken.

And my advice to the New York Times is: strengthen your “likelihood of confusion” case by actually publishing a page like this yourselves. It’s past time.

UPDATE: Hmm. It seems that the Times took a rather negative view of the Franken suit.

ANOTHER UPDATE: A reader who says he’s a copyright lawyer thinks I overstate the strength of the parody defense, and put too much emphasis on the likelihood of confusion point. Could be — this isn’t my area of expertise. But it’s the Times lawyer’s letter that stresses likelihood of confusion, which seems silly to me. I certainly wasn’t confused by the page for a second, and I think that characterizing it as a deliberate effort to confuse people is absurd.

And regardless of the legalities here, the Times is being a bully. If, say, Rush Limbaugh were doing this to a critic under the same kind of circumstances, I suspect the Times would be all over him for it.

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