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Tech Notes

Bogus IP Claims Quash Debate Over Future of NYC Landmark
By EFF
Nov 18, 2008 - 12:02:56 PM

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NEW YORK, NY -- A New York City community organizer is fighting back in court after her parody website challenging redevelopment efforts in New York City's historic Union Square was shut down with bogus claims of copyright infringement and cybersquatting.

The Electronic Frontier Foundation (EFF) is representing Savitri Durkee, an activist concerned with preserving the character of Union Square and Union Square Park. As one part of her education campaign, Durkee created a website parodying the official website of Union Square Partnership (USP), a group backing extensive redevelopment of the area. In response, USP sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act improperly asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP then filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name.

EFF today filed a response to USP's complaint on Durkee's behalf, pointing out that Durkee's parody is protected under the First Amendment and fair use doctrine. The response includes counterclaims asking the court to declare that her site does not infringe USP's trademarks and to prevent USP from taking control of Durkee's domain name, as well as to find that USP's complaint was intended to stifle legitimate political speech. Durkee is also seeking compensation for the abridgement of her speech.

"Union Square is where the U.S. labor movement was born and where abolitionists, suffragettes, civil right activists and many others have fought for and exercised their First Amendment rights," said Durkee. "It's ironic that USP is now trying to keep me from using my parody website to speak out about the future of Union Square."

In the WIPO proceedings, USP has argued that Durkee's website copied elements of USP's website and that users are likely to be confused into thinking the parody site is actually USP's site.

"Ms. Durkee's site is a parody, so of course it mimicked USP's site to some extent. That's how parodies work," said EFF Staff Attorney Corynne McSherry. "The parody site is plainly a fair use and protected by the First Amendment. This is a case about censoring speech, not about infringement."

In addition to filing her answer and counterclaims, Durkee today filed a letter with the court asking for a prompt hearing on her fair use defense. Durkee asked the court to convene a conference as soon as possible to set a schedule for briefing and a hearing.

The law firms Mayer Brown LLP and Gross & Belsky LLP are co-counsel in this case.

For the full answer and counterclaim: www.eff.org/files/filenode/usp_v_durkee/Answer%20and%20Counterclaims.pdf

For more on USP v. Durkee: www.eff.org/cases/usp-v-durkee

For this release: www.eff.org/press/archives/2008/11/18

About EFF

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at www.eff.org/.


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