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Can big business force ISPs to close satire sites?

Computerworld.com reporter Jaikumar Vijayan follows the case of the South African diamond company, the New York Times spoof, and the Swiss Joker in the pack...

A provision in the US federal Communications Decency Act (CDA) protects domain name registrars and web-hosting providers from being held legally liable in most cases for the content that clients post on their websites. But that hasn't stopped some companies from trying to pressure internet intermediaries into disabling websites that contain what they consider to be objectionable material.

The most recent example involves South Africa-based diamond conglomerate De Beers, which is trying to get domain name registrar Joker.com to take down a spoof of the website of The New York Times. The spoof site includes a fake De Beers ad that takes a satirical shot at the company, saying that diamond purchases would enable De Beers "to donate a prosthetic for an African whose hand was lost in diamond conflicts".

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The website includes an online version of a 14-page knockoff of the Times that was published on November 12 and distributed for free to commuters in New York. The paper, which is datelined July 4, 2009, includes madeup stories about the end of the Iraq war, the indictment of President Bush on war crimes charges and the passing of a maximum wage law by Congress, along with other satirical ads in addition to the De Beers one.

The spoof is believed to have been the work of a group called the The Yes Men, which is known for such satirical work. However, the nytimes-se.com domain name is registered with Switzerland-based Joker.com under an apparent pseudonym: Harold Schweppes, who is listed as living in a fictitious town called Son of Triumph, Pa.

In a letter that was sent November 19 to EIS AG, which owns Joker.com, Brian McGinley, a Kansas City-based attorney at Sonnenschein, Nath & Rosenthal LLP who is representing De Beers, demanded that the registrar "immediately disable" the spoof site.

McGinley wrote that his firm's attempts to locate Schweppes had proved futile and that both Schweppes and the address listed for him appear "to be entirely made up".

Because whoever registered the domain name had provided false information to Joker.com, it was the registrar's duty to disable the site, the lawyer added. We obtained a copy of his letter from the Electronic Frontier Foundation, which says it is representing the person behind the Schweppes name.

McGinley contended that the fake De Beers ad wasn't a parody and instead contained "offensive, disparaging, damaging and inaccurate statements" about the company. He warned that if Joker.com didn't disable the spoofed site, the registar itself would be considered a primary infringer by De Beers and would be subject to any legal action that the company decided to take to protect its "valuable name and goodwill".

Neither De Beers officials nor McGinley have responded to requests for comment on the matter. Officials at Joker.com also couldn't be reached for comment, but the fake Times site hadn't been taken down as of the end of last week.

The EFF, a digital-rights advocacy group based in San Francisco, argues that threats such as the ones made by De Beers amount to little more than attempted censorship of protected speech. Last week, the EFF sent a letter to McGinley describing the claims made by De Beers against Joker.com as "improper and baseless" and calling for the diamond company to withdraw its demands.

In an interview, EFF senior staff attorney Matthew Zimmerman said that US law gives ample protection to internet intermediaries in situations such as the one involving the nytimes-se.com site. The CDA "provides blanket immunity in a wide range of areas" to companies such as Joker.com, Zimmerman claimed.

He added that although both Joker.com and De Beers are based outside the US, it may still be possible to apply the CDA in this case because of the fact that the diamond company appears to be going after the authors of the spoof site for alleged violations of US trademark laws - and by extension threatening Joker.com under the same statutes.

In addition, liability for violations of US trademark law doesn't extend to domain name registrars, according to Zimmerman.

"Part of the problem here is that it's not entirely clear what the basis of De Beers' threat is," he said. "But in any case, under US law, Joker.com, doing nothing here but serving as the domain name registrar, wouldn't be on the hook."

Nonetheless, the strategy of targeting hosting firms or domain name registrars isn't uncommon, Zimmerman said. He noted that the content on the spoof site is protected under the First Amendment, making it unlikely that De Beers could make much headway by challenging the legality of the content itself.

The Julius Baer Group, a Swiss bank, employed a similar tactic earlier this year in an attempt to shut down whistleblower website Wikileaks.org. In February, Julius Baer sued Wikileaks and domain name registrar Dynadot LLC over the posting of some bank documents on the whistleblower site. Dynadot quickly agreed to disable and lock the wikileaks.org domain name, a decision that received legal backing when a federal judge in California issued an injunction ordering the registrar to permanently disable the domain name in the US and clear and remove all of its DNS hosting records.

However, the judge later lifted the injunction after it was criticised by several civil rights groups, including the EFF.

There have been other cases as well, Zimmerman said in a blog post on the EFF site. One example is a case in September, in which a judge in Kentucky ordered several domain name registrars to give the state ownership of the domain names of some websites that were believed to be involved in online gambling, which is illegal in Kentucky.

The domain names were transferred to the state's control without the owners of the websites having a chance to defend themselves, according to Zimmerman, who said that in some cases, the domain names were locked by the registrars - meaning that the original owners will be unable to register the same names elsewhere. The EFF filed an amicus brief in that case last month (download PDF).

One of problems raised by such cases, Zimmerman said, is that the registrars appear to be unaware of the legal protections offered to them under the CDA, or are unwilling to exercise those rights. When a legal threat is raised against registrars or other intermediaries, he added, "they might find it's not worth the hassle and give in."

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