Tabberone is pronounced tab ber won |
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Source: http://dustyfeet.com/evil/legal3.html January 7, 2011. Content has not been altered. |
[LETTER SENT BY CINDY A. COHN, LEGAL DIRECTOR, ELECTRONIC FRONTIER FOUNDATION]
VIA: E-MAIL, FACSIMILE and REGULAR MAIL
Matthew Carlin Telephone: 212.688.5151 Fax: 212.688.8315 Re: Barney Parody Dear Mr. Carlin,
As you may recall, I am the Legal Director for the Electronic Frontier Foundation (EFF). As I informed you in March, 2002, EFF represents Dr. Stuart Frankel with regard to claims made by you and your clients against him for a parody of Barney that he has published. I understand from my client that, despite the clear legal prohibition against direct communications to represented parties, on October 11, 2005, you sent another cease and desist notice to Dr. Frankel for the same webpage that you threatened in 2002, now hosted at:
Mr. Carlin, I am greatly saddened and surprised at your renewed harassment of Dr. Frankel . The webpage is unequivocally protected parody under both the First Amendment and the settled law of fair use of copyrighted works. Since the webpage has not materially changed since I last wrote you, I refer you to my letter of March 1, 2002, for the requisite legal analysis. I enclose a copy of that letter for your convenience. I do note that in your October 11, 2005, letter you do omit your facially ridiculous claim that a “threat of violence” against an imaginary character somehow created legal liability for Dr. Frankel.
You have, however, renewed your a threat to make a claim of copyright infringement to Dr. Frankel’s internet service provider. I must strongly caution you against taking this step. Making a false claim of copyright infringement to Dr. Frankel’s service provider would subject you to liability under 17 U.S.C. §512(f), which provides:
It may interest you to know that in a somewhat similar situation in 2004, EFF successfully obtained a published decision granting summary judgment under 17 U.S.C. §512(f) against a company that materially misrepresented that a website engaging in fair use of copyrighted works was infringing. That case subsequently settled for $125,000 payment by the company to EFF and its clients. The case is Online Policy Group v. Diebold, 337 F.Supp.2d 1195 (N.D. Cal. 2004). You can read more about that case here:
http://www.eff.org/news/archives/2004_09.php#001961
Diebold Coughs Up Cash in Copyright Case
http://www.eff.org/news/archives/2004_10.php#002009
Sincerely,
ELECTRONIC FRONTIER FOUNDATION
Cindy A. Cohn
cc: Dr. Stuart Frankel
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