We Proudly Have Your Back: EFF Awards WordPress.com 5 Stars For Protecting User Speech

The Electronic Frontier Foundation yesterday released a new version of their Who Has Your Back? report, focused on protecting user speech from “copyright & trademark bullies.”

yeeaaahhhWe’re proud that WordPress.com was awarded all five possible stars in the report — one of only two services to earn that honor.

“When a private citizen or corporation wants to silence speech on a major online platform, the quickest method is often a copyright or trademark complaint,” the EFF correctly noted. This isn’t what the law intended, but it’s a practice that we see all too frequently.

We strongly support the rights of all creators to reasonably protect their works — WordPress.com users create millions of original (and copyrighted!) posts every day, after all — but we are irked when IP holders stretch their legal rights to the point of abuse. The law is meant to also preserve free expression and fair use. So we strive to defend those liberties and build tough safeguards against censorship. Otherwise WordPress.com, and the Internet at large, cannot remain a free, open, and vibrant platform for all.

A major theme of the EFF report is transparency — how well do internet companies explain their policies to the world and especially to their users? This is crucial because copyright, trademark law, and the enforcement and takedown processes remain an obscure and misunderstood facet of the Internet. We’re continually working to improve on this front and are optimistic about similar efforts underway at many companies across the industry.

The EFF warmed our fair-use-loving little hearts by specifically citing Automattic’s lawsuits in response to abusive takedown requests, policy to have humans carefully review all trademark complaints, and recently expanded transparency report. They also gave shout-outs to great work done by our peers, such as Etsy’s fantastic explanatory writing and Twitter’s two solid years of standard-setting transparency reports, from which we’ve certainly drawn inspiration.

Have a look at the full report. It’s an interesting read, top to bottom. There’s even a PDF version for all you lawyers stuck in the last century.

The animated GIF used above I believe to be fair use of a scene from the Fox Broadcasting Network series Bob’s Burgers. If Fox disagrees, well, they know how to reach us

Hall of Shame: Portakabin Demand the Impossible

Trademarks are important. They allow businesses to build up value in their brands, and give us the ability to distinguish between competitors in crowded marketplaces. In theory, they are necessary to make sure that people are getting the products or services at the standard which they expect. Naturally, this system requires a means of legal enforcement for situations where a mark is used in a manner that causes confusion for consumers.

However, just as ‘apple’ is still a kind of fruit, and ‘Amazon’ is still the name of a rainforest, a trademark registration does not give the holder the power to control every use of that mark. Protection under trademark law only applies in specific circumstances – something that is vital in order to protect freedom of speech.

Sadly, there are many instances where companies and law firms scour the web to aggressively target any mentions of their trademarks that exist, whatever form they may take. This is something we have seen happen previously on WordPress.com with Janet Jackson.

Recently, we received another such claim of trademark infringement, this time regarding the WordPress.com site portacabincabins.wordpress.com.

In the claim, Portakabin Limited asserted that they had already been in contact with the owner of the site, which appeared to have resulted in its subsequent deletion.

This is what it currently looks like:

Portakabin Trademark Claim

This is a standard page that is displayed when a user deletes their site, and it prevents any other users from being able to use that URL in the future. However, having had the site successfully removed, Portakabin still weren’t happy. In their notice to us, they demanded that we disable access to the holding page URL completely. To illustrate their point, they attached a scanned copy of a print-out of the above screenshot. (Why is it that lawyers insist on doing that by the way?)

We don’t believe that trademark holders automatically gain a right to every subdomain related to their brand on the Internet. Despite there being no actual content on the page, Portakabin were determined to prevent any reference to their trademark being made, including in the actual URL itself.

In this case, there is clearly no infringement from a page that indicates a site is not accessible. Even if the deletion notice was to be removed, or replaced with a 404 Not Found response, there would be no way to prevent users from getting to that page by typing the URL into the address bar.

Sorry Portakabin. For demanding the impossible, you’ve made it into our Hall of Shame.